IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division
UNITED STATES OF AMERICA )
)
v. ) Criminal No. 1:07CR209
)
WILLIAM J. JEFFERSON, ) Hon. T.S. Ellis, III
)
Defendant. ) Trial: June 2, 2009
GOVERNMENT’S PROPOSED JURY INSTRUCTIONS AND VERDICT FORM
The government respectfully requests the Court to include in its charge to the Jury the
following general instructions, found in O’Malley, Grenig, and Lee, Federal Jury Practice and
Instructions (5th ed. 2000), Volume 1A, “General Instructions for Federal Criminal Cases.”
I. Pre-Trial Jury Charges
§ 11.03 - Objections and Rulings
§ 11.04 - Court’s Comments to Counsel
§ 11.05 - Court’s Questions to Witnesses
§ 11.06 - Court’s Comments on Certain Evidence
§ 11.08 - Publicity During Trial
§ 11.10 - Typewritten Transcripts of Recorded Conversations
II. Final Jury Charges
§ 12.01 - Introduction to the Final Charge -- Province of the Court and of the
Jury
§ 12.02 - Judging the Evidence
§ 12.03 - Evidence Received in the Case -- Stipulations, Judicial Notice, and
Inferences Permitted
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§ 12.04 - Direct and Circumstantial Evidence
§ 12.05 - Inferences from the Evidence
§ 12.07 - Jury’s Recollection Controls
§ 12.08 - The Question Is Not Evidence
§ 12.12 - Consider Each Count Separately
§ 14.01 - Opinion Evidence -- The Expert Witness
§ 14.02 - Charts and Summaries -- Not Admitted; Admitted [if applicable]
§ 14.06 - False Exculpatory Statements
§ 15.01 - Credibility of Witnesses -- Generally
§ 15.06 - Credibility of Witnesses -- Inconsistent Statement
§ 15.07 - Credibility of Witnesses -- Conviction of Felony
§ 15.12 - Credibility of Witnesses -- The Defendant as a Witness [if applicable]
§ 15.14 - Effect of Defendant’s Failure to Testify [if applicable]
§ 17.04 - “Knowingly” -- Defined
§ 17.07 - Proof of Knowledge or Intent
§ 18.02 - Common Scheme or Plan -- Evidence of Acts or Declarations of
Confederates
§ 20.01 - Verdict -- Election of Foreperson -- Duty to Deliberate -- Unanimity
-- Punishment -- Form of Verdict -- Communication With the Court
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The body of those requested pattern jury instructions is attached hereto, along with additional
proposed special instructions, which the government requests that the Court include in its charge to
the Jury. The government reserves the right to propose such other instructions as may become
appropriate during the course of the trial.
Respectfully submitted,
Dana J. Boente
United States Attorney
By: /s/
Mark D. Lytle
Assistant United States Attorney
Attorney for the United States
United States Attorney’s Office
2100 Jamieson Avenue
Alexandria, VA 22314
Phone: 703-299-3700
Fax: 703-299-3981
Mark.Ly[email protected]
/s/
Rebeca H. Bellows
Assistant United States Attorney
Attorney for the United States
United States Attorney’s Office
2100 Jamieson Avenue
Alexandria, VA 22314
Phone: 703-299-3700
Fax: 703-299-3981
Becky[email protected]
/s/
Charles E. Duross
Special Assistant U.S. Attorney
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Attorney for the United States
United States Attorney’s Office
2100 Jamieson Avenue
Alexandria, VA 22314
Phone: 703-299-3700
Fax: 703-299-3981
CERTIFICATE OF SERVICE
I hereby certify that on the 26th day of May, 2009, I electronically filed the foregoing with
the Clerk of the Court using the CM/ECF system, which will send a notification of such filing (NEF)
to the following:
Robert P. Trout, Esq.
Amy Berman Jackson, Esq.
Gloria B. Solomon, Esq.
Trout Cacheris, PLLC
1350 Connecticut Avenue, N.W.
Suite 300
Washington, D.C. 20036
/s/
Mark D. Lytle
Assistant United States Attorney
United States Attorney’s Office
2100 Jamieson Avenue
Alexandria, VA 22314
Phone: 703-299-3768
Fax: 703-299-3981
Mark.Ly[email protected]
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TABLE OF CONTENTS
Page No.
I. General Instructions
Identified in body of pleading. ........................................... 9-39
II. Special Instructions
A. General
1. Presumption of Innocence.....................................4 1
2. Burden of Proof and Reasonable Doubt. . . . . . . . . . . . . . . . . . . . . . . . . . 4 2
3. “Willfully” -- Defined........................................4 3
4. “Corruptly” -- Defined........................................4 4
5. “On or About” or “In or About” -- Explained. . . . . . . . . . . . . . . . . . . . . . 4 5
6. Credibility of Witnesses -- Immunized Witnesses.. . . . . . . . . . . . . . . . . . 4 6
7. Credibility of Witnesses -- Accomplice . . . . . . . . . . . . . . . . . . . . . . . . . . 4 7
8. Ethical Rules. ..............................................4 8
9. Deliberate Ignorance -- Explained. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 9
B. Conspiracy, Counts One and Two (18 U.S.C. § 371)
10. The Nature of the Offense Charged. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 1
11. Multiple Objects (for Use with General Conspiracy Charge). . . . . . . . . . 5 2
12. The Statute Defining the Offense Charged. . . . . . . . . . . . . . . . . . . . . . . . 5 3
13. The Essential Elements of the Offense Charged. . . . . . . . . . . . . . . . . 54-55
14. Conspiracy -- Existence of an Agreement. . . . . . . . . . . . . . . . . . . . . . 56-57
15. Conspiracy -- Membership in an Agreement.. . . . . . . . . . . . . . . . . . . . . . 5 8
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16. Acts and Declarations of Co-Conspirators.. . . . . . . . . . . . . . . . . . . . . . . . 5 9
17. “Overt Acts” -- Defined.......................................6 0
18. Success of Conspiracy Immaterial.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 1
19. Unindicted, Unnamed or Separately Tried Co-Conspirators. . . . . . . . . . . 6 2
20. Relationship Between Substantive Offense and
Conspiracy to Commit Offense.................................6 3
21. Conspiracy Venue. ..........................................6 4
C. Bribery, Counts Three and Four (18 U.S.C. § 201(b)(2)(A))
22. The Nature of the Offense Charged. . . . . . . . . . . . . . . . . . . . . . . . . . . 66-67
23. The Statute Defining the Offense Charged. . . . . . . . . . . . . . . . . . . . . . . . 6 8
24. The Essential Elements of the Offense Charged. . . . . . . . . . . . . . . . . . . . 6 9
25. “Public Official” -- Defined....................................7 0
26. “Official Act” -- Defined......................................7 1
27. “Any thing of value” -- Defined.................................7 2
D. Wire Fraud, Counts Five Through Ten (18 U.S.C. §§ 1343, 1346)
28. The Nature of the Offense Charged. . . . . . . . . . . . . . . . . . . . . . . . . . . 74-75
29. The Statute Defining the Offense Charged. . . . . . . . . . . . . . . . . . . . . . . . 7 6
30. The Essential Elements of the Offense Charged. . . . . . . . . . . . . . . . . 77-78
31. “Scheme to Defraud or Deprive” and “Deprive Another of the
Intangible Right to Honest Services” -- Defined. . . . . . . . . . . . . . . . . 79-80
32. “Duty to Disclose” -- Defined..................................8 1
33. “Conflict of Interest” -- Defined. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 2
34. “Scheme” -- Defined.........................................8 3
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35. “Materiality” -- Defined.......................................8 4
36. “Intent to Defraud” -- Defined..................................8 5
37. Dual Intent -- Defined. .......................................8 6
38. Use of Interstate Wire Communication. . . . . . . . . . . . . . . . . . . . . . . . . . . 8 7
39. Official Action Was Lawful Is Not a Defense. . . . . . . . . . . . . . . . . . . . . . 8 8
E. Foreign Corrupt Practices Act (“FCPA”), Count Eleven
(15 U.S.C. § 78dd-2(a))
40. The Nature of the Offense Charged. . . . . . . . . . . . . . . . . . . . . . . . . . . 90-91
41. The Statute Defining the Offense Charged. . . . . . . . . . . . . . . . . . . . . . . . 9 2
42. The Essential Elements of the Offense Charged. . . . . . . . . . . . . . . . . 93-94
43. “Domestic Concern” -- Defined.................................9 5
44. “Interstate Commerce” -- Defined. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 6
45. Promise or Authorization to Pay Sufficient -- Explained. . . . . . . . . . . . . 9 7
46. Payments to Third Parties -- “Knowing” -- Defined. . . . . . . . . . . . . . . . . 9 8
47. Willful Blindness -- Foreign Corrupt Practices Act . . . . . . . . . . . . . . . . . 9 9
48. “Foreign Official” and “Instrumentality” -- Defined. . . . . . . . . . . . . . . . 100
49. “Obtaining or Retaining Business” -- Defined.. . . . . . . . . . . . . . . . . . . . 101
50. Solicitation of Bribe Not a Defense -- Explained. . . . . . . . . . . . . . . . . . 102
F. Money Laundering, Counts Twelve Through Fourteen (18 U.S.C. § 1957)
51. The Nature of the Offense Charged. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
52. The Statute Defining the Offense Charged. . . . . . . . . . . . . . . . . . . . . . . 105
53. The Essential Elements of the Offense Charged. . . . . . . . . . . . . . . . . . . 106
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54. “Monetary Transaction,” “Financial Institution,”
and “Criminally Derived Property” -- Defined. . . . . . . . . . . . . . . . . . . . 107
G. Aiding and Abetting, Applicable to Counts Three Through Fourteen
55. Aiding and Abetting -- Explained. . . . . . . . . . . . . . . . . . . . . . . . . . 109-110
H. Obstruction of Justice, Count Fifteen (18 U.S.C. § 1512(c)(1))
56. The Nature of the Offense Charged. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
57. The Statute Defining the Offense Charged. . . . . . . . . . . . . . . . . . . . . . . 113
58. The Essential Elements of the Offense Charged. . . . . . . . . . . . . . . 114-115
59. “Official Proceeding” -- Defined. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
I. Racketeer Influenced Corrupt Organizations Act
(“RICO”), Count Sixteen (18 U.S.C. § 1962(c))
60. The Nature of the Offense Charged. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
61. The Statute Defining the Offense Charged. . . . . . . . . . . . . . . . . . . . . . . 119
62. The Essential Elements of the Offense Charged. . . . . . . . . . . . . . . . . . . 120
63. An “Enterprise” -- Defined. .............................. 121-122
64. “Engaged in, or the Activities of Which Affect, Interstate
Commerce” -- Defined................................... 123-124
65. Defendant Was Employed By or Associated with the
Enterprise............................................. 125-126
66. Conduct or Participate in the Conduct of the Affairs
of the Enterprise........................................ 127-128
67. Pattern of Racketeering Activity -- Defined. . . . . . . . . . . . . . . . . . 129-131
68. Racketeering Activity.................................... 132-136
J. Proposed Verdict Form....................................... 137-140
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GENERAL INSTRUCTIONS
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Objections and Rulings
Testimony and exhibits can be admitted into evidence during a trial only if they meet
certain criteria or standards. It is the sworn duty of the attorney on each side of a case to object
when the other side offers testimony or an exhibit which that attorney believes is not properly
admissible under the rules of law. Only by raising an objection can a lawyer request and obtain a
ruling from the Court on the admissibility of the evidence being offered by the other side. You
should not be influenced against an attorney or his or her client because the attorney has made
objections.
Do not attempt, moreover, to interpret my rulings on objections as somehow indicating
how I think you should decide this case. I am simply making a ruling on a legal question.
(1A O’Malley, Grenig, and Lee, Federal Jury Practice and Instructions, Section 11.03 (5th ed.
2000).)
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Court’s Comments to Counsel
It is the duty of the Court to admonish an attorney who, out of zeal for his or her cause,
does something which I feel is not in keeping with the rules of evidence or procedure.
You are to draw absolutely no inference against the side to whom an admonition of the
Court may have been addressed during the trial of this case.
(1A O’Malley, Grenig, and Lee, Federal Jury Practice and Instructions, Section 11.04 (5th ed.
2000).)
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Court’s Questions to Witnesses
During the course of a trial, I may occasionally ask questions of a witness. Do not
assume that I hold any opinion on the matters to which my questions may relate. The Court may
ask a question simply to clarify a matter -- not to help one side of the case or hurt another side.
Remember at all times that you, as jurors, are the sole judges of the facts of this case.
(1A O’Malley, Grenig, and Lee, Federal Jury Practice and Instructions, Section 11.05 (5th ed.
2000).)
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Court’s Comments on Certain Evidence
The law of the United States permits a federal judge to comment to the jury on the
evidence in a case. Such comments are, however, only expressions of my opinion as to the facts
and the jury may disregard them entirely. You, as jurors, are the sole judges of the facts in this
case. It is your recollection and evaluation of the evidence that is important to the verdict in this
case.
Although you must follow the Court’s instructions concerning the law applicable to this
case, you are totally free to accept or reject my observations concerning the evidence received in
the case.
(1A O’Malley, Grenig, and Lee, Federal Jury Practice and Instructions, Section 11.06 (5th ed.
2000).)
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Publicity During Trial
I am advised that reports about this trial are appearing in the newspapers and on radio and
television and the Internet. The person who wrote or is reporting the story may not have listened
to all of the testimony as you have, may be getting information from people who you will not see
here in Court under oath and subject to cross-examination, may emphasize an unimportant point,
or may simply be wrong.
Please do not read anything or listen to anything or watch anything with regard to this
trial. The case must be decided by you solely and exclusively on the evidence which will be
received here in court.
(1A O’Malley, Grenig, and Lee, Federal Jury Practice and Instructions, Section 11.08 (5th ed.
2000).)
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Typewritten Transcripts of Recorded Conversations
Recordings of conversations have been received in evidence and [are about to be] [have
been] played for you. Typewritten transcripts of these recorded conversations [are about to be]
[have been] furnished to you. These typewritten transcripts of the conversations are being given
to you solely for your convenience in assisting you in following the conversation or in identifying
the speakers.
The recordings themselves are evidence in the case and the typewritten transcripts are not
evidence. What you hear on the recordings is evidence. What you read on the transcript is not.
If you perceive any variation between the two, you will be guided solely by the recordings and
not by the transcripts.
If you cannot, for example, determine from the recording that particular words were
spoken or if you cannot determine from the recording who said a particular word or words, you
must disregard the transcripts insofar as those words or that speaker are concerned.
(1A O’Malley, Grenig, and Lee, Federal Jury Practice and Instructions, Section 11.10 (5th ed.
2000) (modified to reflect that the recordings were not made on “tapes,” thus removing the word
“tape” before the word “recording” and replacing the word “tapes” with the word “recording”).)
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Introduction to the Final Charge
-- Province of the Court and of the Jury
Members of the Jury:
Now that you have heard all of the evidence that is to be received in this trial and each of
the arguments of counsel it becomes my duty to give you the final instructions of the Court as to
the law that is applicable to this case. You should use these instructions to guide you in your
decisions.
All of the instructions of law given to you by the Court -- those given to you at the
beginning of the trial, those given to you during the trial, and these final instructions -- must
guide and govern your deliberations.
It is your duty as jurors to follow the law as stated in all of the instructions of the Court
and to apply these rules of law to the facts as you find them to be from the evidence received
during the trial.
Counsel have quite properly referred to some of the applicable rules of law in their
closing arguments to you. If, however, any difference appears to you between the law as stated
by counsel and that as stated by the Court in these instructions, you, of course, are to be governed
by the instructions given to you by the Court.
You are not to single out any one instruction alone as stating the law, but must consider
the instructions as a whole in reaching your decisions.
Neither are you to be concerned with the wisdom of any rule of law stated by the Court.
Regardless of any opinion you may have as to what the law ought to be, it would be a violation of
your sworn duty to base any part of your verdict upon any other view or opinion of the law than
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that given in these instructions of the Court just as it would be a violation of your sworn duty, as
the judges of the facts, to base your verdict upon anything but the evidence received in the case.
You were chosen as juror for this trial in order to evaluate all of the evidence received
and to decide each of the factual questions presented by the allegations brought by the
government in the Indictment and the plea of not guilty by the defendant.
In resolving the issues presented to you for decision in this trial you must not be
persuaded by bias, prejudice, or sympathy for or against any of the parties to this case or by any
public opinion.
Justice -- through trial by jury -- depends upon the willingness of each individual juror to
seek the truth from the same evidence presented to all the jurors here in the courtroom and to
arrive at a verdict by applying the same rules of law as now being given to each of you in these
instructions of the Court.
(1A O’Malley, Grenig, and Lee, Federal Jury Practice and Instructions, Section 12.01 (5th ed.
2000).)
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Judging the Evidence
There is nothing particularly different in the way that a juror should consider the evidence
in a trial from that in which any reasonable and careful person would deal with any very
important question that must be resolved by examining facts, opinions, and evidence. You are
expected to use your good sense in considering and evaluating the evidence in the case. Use the
evidence only for those purposes for which it has been received and give the evidence a
reasonable and fair construction in the light of your common knowledge of the natural tendencies
and inclinations of human beings.
If the defendant be proved guilty beyond a reasonable doubt, say so. If not proved guilty
beyond a reasonable doubt, say so.
Keep constantly in mind that it would be a violation of your sworn duty to base a verdict
upon anything other than the evidence received in the case and the instructions of the Court.
Remember as well that the law never imposes upon a defendant in a criminal case the burden or
duty of calling any witnesses or producing any evidence because the burden of proving guilt
beyond a reasonable doubt is always with the government.
(1A O’Malley, Grenig, and Lee, Federal Jury Practice and Instructions, Section 12.02 (5th ed.
2000).)
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Evidence Received in the Case --
Stipulations, Judicial Notice, and Inferences Permitted
The evidence in this case consists of the sworn testimony of the witnesses -- regardless
of who may have called them -- all exhibits received in evidence -- regardless of who may have
produced them -- all facts which may have been agreed to or stipulated and all facts and events
which may have been judicially noticed.
When the attorneys on both sides stipulate or agree as to the existence of a fact, you may
accept the stipulation as evidence and regard that fact as proved. You are not required to do so,
however, since you are the sole judge of the facts.
The Court has taken judicial notice of certain facts or events. When the Court declares
that it has taken judicial notice of some fact or event, you may accept the Court’s declaration as
evidence and regard as proved the fact or event which has been judicially noticed. You are not
required to do so, however, since you are the sole judge of the facts.
Any proposed testimony or proposed exhibit to which an objection was sustained by the
Court and any testimony or exhibit ordered stricken by the Court must be entirely disregarded.
Anything you may have seen or heard outside the courtroom is not evidence and must be
entirely disregarded.
Questions, objections, statements, and arguments of counsel are not evidence in the case.
You are to base your verdict only on the evidence received in the case. In your
consideration of the evidence received, however, you are not limited to the bald statements of the
witnesses or to the bald assertions in the exhibits. In other words, you are not limited solely to
what you see and hear as the witnesses testify or as the exhibits are admitted. You are permitted
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to draw from the facts which you find have been proved such reasonable inferences as you feel
are justified in the light of your experience and common sense.
(1A O’Malley, Grenig, and Lee, Federal Jury Practice and Instructions, Section 12.03 (5th ed.
2000).)
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Direct and Circumstantial Evidence
There are two types of evidence which are generally presented during a trial -- direct
evidence and circumstantial evidence. Direct evidence is the testimony of a person who asserts
or claims to have actual knowledge of a fact, such as an eyewitness. Circumstantial evidence is
proof of a chain of facts and circumstances indicating the existence of a fact. The law makes no
distinction between the weight or value to be given to either direct or circumstantial evidence.
Nor is a greater degree of certainty required of circumstantial evidence than of direct evidence.
You should weigh all the evidence in the case.
(1A O’Malley, Grenig, and Lee, Federal Jury Practice and Instructions, Section 12.04 (5th ed.
2000).)
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Inferences from the Evidence
Inferences are simply deductions or conclusions which reason and common sense lead the
jury to draw from the evidence received in the case.
(1A O’Malley, Grenig, and Lee, Federal Jury Practice and Instructions, Section 12.05 (5th ed.
2000).)
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Jury’s Recollection Controls
If any reference by the Court or by counsel to matters of testimony or exhibits does not
coincide with your own recollection of that evidence, it is your recollection which should control
during your deliberations and not the statements of the Court or of counsel.
You are the sole judges of the evidence received in this case.
(1A O’Malley, Grenig, and Lee, Federal Jury Practice and Instructions, Section 12.07 (5th ed.
2000).)
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The Question is Not Evidence
The questions asked by a lawyer for either party to this case are not evidence. If a lawyer
asks a question of a witness which contains an assertion of fact, therefore, you may not consider
the assertion by the lawyer as any evidence of that fact. Only the answers are evidence.
(1A O’Malley, Grenig, and Lee, Federal Jury Practice and Instructions, Section 12.08 (5th ed.
2000).)
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Consider Each Count Separately
A separate crime is charged in each count of the Indictment. Each charge, and the
evidence pertaining to it, should be considered separately by the jury. The fact that you may find
the defendant guilty or not guilty as to one of the counts should not control your verdict as to any
other count.
(1A O’Malley, Grenig, and Lee, Federal Jury Practice and Instructions, Section 12.12 (5th ed.
2000).)
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Opinion Evidence -- The Expert Witness
The rules of evidence ordinarily do not permit witnesses to testify as to their own
opinions or their own conclusions about important questions in a trial. An exception to this rule
exists as to those witnesses who are described as “expert witnesses.” An “expert witness” is
someone who, by education or by experience, may have become knowledgeable in some
technical, scientific, or very specialized area. If such knowledge or experience may be of
assistance to you in understanding some of the evidence or in determining a fact, an “expert
witness” in that area may state an opinion as to a matter in which he or she claims to be an
expert.
You should consider each expert opinion received in evidence in this case and give it
such weight as you may think it deserves. You should consider the testimony of expert witnesses
just as you consider other evidence in this case. If you should decide that the opinion of an
expert witness is not based upon sufficient education or experience, or if you should conclude
that the reasons given in support of the opinion is outweighed by other evidence [including that
of other “expert witnesses”], you may disregard the opinion in part or in its entirety.
As I have told you several times, you -- the jury -- are the sole judges of the facts of this
case.
(1A O’Malley, Grenig, and Lee, Federal Jury Practice and Instructions, Section 14.01 (5th ed.
2000).)
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Charts and Summaries -- Not Admitted; Admitted
Not Admitted Into Evidence
Charts or summaries have been prepared by the government [and the defense] and shown
to you during the trial for the purpose of explaining facts that are allegedly contained in books,
records, and other documents which are in evidence in the case. Such charts or summaries are
not evidence in this trial or proof of any fact. If you find that these charts or summaries do not
correctly reflect facts or figures shown by the evidence in the case, you should disregard the
charts or summaries. In other words, such charts or summaries are used only as a matter of
convenience for you and to the extent that you find they are not, in truth, summaries of facts or
figures shown by the evidence in the case, you can disregard them entirely.
Admitted Into Evidence
Charts or summaries have been prepared by the government [and the defense], have been
admitted into evidence and have been shown to you during the trial for the purpose of explaining
facts that are allegedly contained in books, records, or other documents which are also in
evidence in the case. You may consider the charts and summaries as you would any other
evidence admitted during the trial and give them such weight or importance, if any, as you feel
they deserve.
(1A O’Malley, Grenig, and Lee, Federal Jury Practice and Instructions, Section 14.02 (5th ed.
2000).)
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False Exculpatory Statements
Statements knowingly and voluntarily made by Defendant Jefferson upon being informed
that a crime had been committed or upon being accused of a criminal charge may be considered
by the jury.
When a defendant voluntarily offers an explanation or voluntarily makes some statement
tending to show his innocence and it is later shown that the defendant knew that the statement or
explanation was false, the jury may consider this as showing a consciousness of guilt on the part
of a defendant since it is reasonable to infer that an innocent person does not usually find it
necessary to invent or fabricate an explanation or statement tending to establish his innocence.
Whether or not evidence as to a defendant’s explanation or statement points to a
consciousness of guilt on his part and the significance, if any, to be attached to any such
evidence, are matters exclusively within the province of the jury since you are the sole judges of
the facts of this case.
In your evaluation of evidence of an exculpatory statement shown to be false, you may
consider that there may be reasons -- fully consistent with innocence -- that could cause a person
to give a false statement showing that he did not commit a crime. Fear of law enforcement,
reluctance to become involved, and simple mistake may cause a person who has committed no
crime to give such a statement or explanation.
(1A O’Malley, Grenig, and Lee, Federal Jury Practice and Instructions, Section 14.06 (5th ed.
2000).)
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Credibility of Witnesses -- Generally
You, as jurors, are the sole and exclusive judges of the credibility of each of the witnesses
called to testify in this case and only you determine the importance or the weight that their
testimony deserves. After making your assessment concerning the credibility of a witness, you
may decide to believe all of that witness’ testimony, only a portion of it, or none of it.
In making your assessment of that witness you should carefully scrutinize all of the
testimony given by that witness, the circumstances under which each witness has testified, and all
of the other evidence which tends to show whether a witness, in your opinion, is worthy of belief.
Consider each witness’s intelligence, motive to falsify, state of mind, and appearance and manner
while on the witness stand. Consider the witness’s ability to observe the matters as to which he
or she has testified and consider whether he or she impresses you as having an accurate memory
or recollection of these matters. Consider also any relation a witness may bear to either side of
the case, the manner in which each witness might be affected by your verdict, and the extent to
which, if at all, each witness is either supported or contradicted by other evidence in the case.
Inconsistencies or discrepancies in the testimony of a witness or between the testimony of
different witnesses may or may not cause you to disbelieve or discredit such testimony. Two or
more persons witnessing an incident or a transaction may simply see or hear it differently.
Innocent misrecollection, like failure of recollection, is not an uncommon human experience. In
weighing the effect of a discrepancy, however, always consider whether it pertains to a matter of
importance or an insignificant detail and consider whether the discrepancy results from innocent
error or from intentional falsehood.
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After making your own judgment or assessment concerning the believability of a witness,
you can then attach such importance or weight to that testimony, if any, that you feel it deserves.
You will then be in a position to decide whether the government has proven the charges beyond a
reasonable doubt.
(1A O’Malley, Grenig, and Lee, Federal Jury Practice and Instructions, Section 15.01 (5th ed.
2000).)
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Credibility of Witnesses -- Inconsistent Statement
The testimony of a witness may be discredited or, as we sometimes say, impeached by
showing that he or she previously made statements which are different than or inconsistent with
his or her testimony here in court. The earlier inconsistent or contradictory statements are
admissible only to discredit or impeach the credibility of the witness and not to establish the truth
of these earlier statements made somewhere other than here during this trial. It is the province of
the jury to determine the credibility of a witness who has made prior inconsistent or contradictory
statements.
If a person is shown to have knowingly testified falsely concerning any important or
material matter, you obviously have a right to distrust the testimony of such an individual
concerning other matters. You may reject all of the testimony of that witness or give it such
weight or credibility as you may think it deserves.
(1A O’Malley, Grenig, and Lee, Federal Jury Practice and Instructions, Section 15.06 (5th ed.
2000).)
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Credibility of Witnesses -- Conviction of Felony
The testimony of a witness may be discredited or impeached by evidence showing that
the witness has been convicted of a felony, a crime for which a person may receive a prison
sentence of more than one year.
Prior conviction of a crime that is a felony is one of the circumstances which you may
consider in determining the credibility of that witness.
It is the sole and exclusive right of the jury to determine the weight to be given to any
prior conviction as impeachment and the weight to be given to the testimony of anyone who has
previously been convicted of a felony.
(1A O’Malley, Grenig, and Lee, Federal Jury Practice and Instructions, Section 15.07 (5th ed.
2000).)
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Credibility of Witnesses -- The Defendant as a Witness
You should judge the testimony of Defendant Jefferson in the same manner as you judge
the testimony of any other witness in this case.
(1A O’Malley, Grenig, and Lee, Federal Jury Practice and Instructions, Section 15.12 (5th ed.
2000) (if defendant testifies).)
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Effect of the Defendant’s Failure to Testify
The defendant in a criminal case has an absolute right under our Constitution not to testify.
The fact that the Defendant Jefferson did not testify must not be discussed or considered in
any way when deliberating and in arriving at your verdict. No inference of any kind may be drawn
from the fact that a defendant decided to exercise his privilege under the Constitution and did not
testify.
As stated before, the law never imposes upon a defendant in a criminal case the burden or
duty of calling any witnesses or of producing any evidence.
(1A O’Malley, Grenig, and Lee, Federal Jury Practice and Instructions, Section 15.14 (5th ed.
2000) (if defendant does not testify).)
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“Knowingly” -- Defined
The term “knowingly,” as used in these instructions to describe the alleged state of mind
of Defendant Jefferson, means that he was conscious and aware of his actions or omissions,
realized what he was doing or what was happening around him, and did not act or fail to act
because of ignorance, mistake, or accident.
(1A O’Malley, Grenig, and Lee, Federal Jury Practice and Instructions, Section 17.04 (5th ed.
2000).)
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Proof of Knowledge or Intent
The intent of a person or the knowledge that a person possesses at any given time may not
ordinarily be proved directly because there is no way of directly scrutinizing the workings of the
human mind. In determining the issue of what a person knew or what a person intended at a
particular time, you may consider any statements made or acts done or omitted by that person and
all other facts and circumstances received in evidence which may aid in your determination of
that person’s knowledge or intent.
You may infer, but you are certainly not required to infer, that a person intends the natural
and probable consequences of acts knowingly done or knowingly omitted. It is entirely up to
you, however, to decide what facts to find from the evidence received during this trial.
(1A O’Malley, Grenig, and Lee, Federal Jury Practice and Instructions, Section 17.07 (5th ed.
2000).)
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Verdict -- Election of Foreperson -- Duty to Deliberate
-- Unanimity -- Punishment -- Form of Verdict -- Communication with the Court
Upon retiring to your jury room to begin your deliberations, you must elect one of your
members to act as your foreperson. The foreperson will preside over your deliberations and will
be your spokesperson here in court.
Your verdict must represent the collective judgment of the jury. In order to return a
verdict, it is necessary that each juror agree to it. Your verdict, in other words, must be
unanimous.
It is your duty as jurors to consult with one another and to deliberate with one another
with a view towards reaching an agreement if you can do so without violence to individual
judgment. Each of you must decide the case for himself and herself, but do so only after an
impartial consideration of the evidence in the case with your fellow jurors. In the course of your
deliberations, do not hesitate to reexamine your own views and to change your opinion if
convinced it is erroneous. Do not surrender your honest conviction, however, solely because of
the opinion of your fellow jurors or for the mere purpose of thereby being able to return a
unanimous verdict.
Remember at all times that you are not partisans. You are judges -- judges of the facts of
this case. Your sole interest is to seek the truth from the evidence received during the trial.
Your verdict must be based solely upon the evidence received in the case. Nothing you
have seen or read outside of court may be considered. Nothing that I have said or done during
the course of this trial is intended in any way, to somehow suggest to you what I think your
verdict should be. Nothing said in these instructions and nothing in any form of verdict, which
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has been prepared for your convenience, is to suggest or convey to you in any way or manner any
intimation as to what verdict I think you should return. What the verdict shall be is the exclusive
duty and responsibility of the jury. As I have told you many times, you are the sole judges of the
facts.
The punishment provided by law for the offenses charged in the Indictment is a matter
exclusively within the province of the Court and should never be considered by the jury in any
way in arriving at an impartial verdict as to the offenses charged.
A form of verdict has been prepared for your convenience.
[ The form of verdict should be read to the jury.]
You will take this form to the jury room and, when you have reached unanimous
agreement as to your verdict, you will have your foreperson write your verdict, date and sign the
form, and then return with your verdict to the courtroom.
If it becomes necessary during your deliberations to communicate with the Court, you
may send a note, signed by your foreperson or by one or more members of the jury, through the
bailiff. No member of the jury should ever attempt to communicate with the Court by any means
other than a signed writing and the Court will never communicate with any member of the jury
concerning the evidence, your opinions, or the deliberations other than in writing or orally here in
open court.
You will note from the oath about to be taken by the bailiffs that they too, as well as all
other persons, are forbidden to communicate in any way or manner with any member of the jury
concerning the evidence, your opinions, or the deliberations.
Bear in mind also that you are never to reveal to any person -- not even to the Court --
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how the jury stands, numerically or otherwise, on the question of whether or not the government
has sustained its burden of proof until after you have reached a unanimous verdict.
(1A O’Malley, Grenig, and Lee, Federal Jury Practice and Instructions, Section 20.01 (5th ed.
2000).)
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SPECIAL INSTRUCTIONS:
GENERAL
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GOVERNMENT’S PROPOSED JURY INSTRUCTION NO. 1
Presumption of Innocence
I instruct you that you must presume Defendant Jefferson to be innocent of the crimes
charged. Thus, the defendant, although accused of crimes in the Indictment, begins the trial with
a “clean slate” -- with no evidence against him. The Indictment, as you already know, is not
evidence of any kind. The law permits nothing but legal evidence presented before the jury in
court to be considered in support of any charge against the defendant. The presumption of
innocence alone, therefore, is sufficient to acquit the defendant.
(1A O’Malley, Grenig, and Lee, Federal Jury Practice and Instructions, Section 12.10 (5th ed.
2000) (first paragraph).)
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GOVERNMENT’S PROPOSED JURY INSTRUCTION NO. 2
Burden of Proof and Reasonable Doubt
The burden is always upon the prosecution to prove guilt beyond a reasonable doubt.
This burden never shifts to a defendant for the law never imposes upon a defendant in a criminal
case the burden or duty of calling any witnesses or producing any evidence. The defendant is not
even obligated to produce any evidence by cross-examining the witnesses for the government.
It is not required that the government prove guilt beyond all possible doubt. The test is
one of reasonable doubt.
Unless the government proves, beyond a reasonable doubt, that Defendant Jefferson has
committed each and every element of the offenses charged in the Indictment, you must find the
defendant not guilty of the offenses. If the jury views the evidence in the case as reasonably
permitting either of two conclusions -- one of innocence, the other of guilt -- the jury must, of
course, adopt the conclusion of innocence.
(1A O’Malley, Grenig, and Lee, Federal Jury Practice and Instructions, Section 12.10 (5th ed.
2000) (last three paragraphs, except definition of “reasonable doubt” deleted to conform with Fourth
Circuit law regarding definitions of reasonable doubt); United States v. Williams, 152 F.3d 294, 298
(4th Cir. 1998) (trial court is not required to define reasonable doubt as matter of course so long as
jury is instructed that defendant’s guilt must be proven beyond reasonable doubt); see also United
States v. Oriakhi, 57 F.3d 1290 (4th Cir. 1995); United States v. Reives, 15 F.3d 42 (4th Cir. 1994).)
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GOVERNMENT’S PROPOSED JURY INSTRUCTION NO. 3
“Willfully” -- Defined
The word “willfully,” as that term is used in the Indictment or in these instructions, means
that the act was committed voluntarily and purposely, with the specific intent to do something the
law forbids; that is with bad purpose either to disobey or disregard the law. Now, the person need
not be aware of the specific law or rule that his conduct may be violating. But he must act with the
intent to do something that the law forbids.
(See Eleventh Circuit Pattern Jury Instructions for Criminal Cases, Basic Instruction No. 9.1 (2003);
see also Bryan v. United States, 524 U.S. 184, 190-93 (1998); United States v. Kay, 4:01cr00914,
Dkt. Entry 142 at 14-15 (S.D. Tex.) (jury instructions in FCPA prosecution), aff’d, No. 05-20604,
2007 WL 3088140, at *7-10 (5th Cir. Oct. 24, 2007) (discussing “willfully” in FCPA prosecution),
reh’g denied, 2008 WL 96106, at *1-3 (5th Cir. Jan. 10, 2008).)
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GOVERNMENT’S PROPOSED JURY INSTRUCTION NO. 4
“Corruptly” -- Defined
To act “corruptly” means to act knowingly and dishonestly for a wrongful purpose.
(Eleventh Circuit Pattern Jury Instructions for Criminal Cases, Offense Instruction No. 5.2 (2003):
see 2 O’Malley, Grenig, and Lee, Federal Jury Practice and Instructions, Section 27.09 (5th ed.
2000) (defining “corruptly” for bribery offense); 2A O’Malley, Grenig, and Lee, Federal Jury
Practice and Instructions Criminal, Section 48.04 (5th ed. 2000) (defining “corruptly” for
obstruction of justice offense); see also Arthur Andersen LLP v. United States, 544 U.S. 696, 705-06
(2005); United States v. Liebo, 923 F.2d 1308, 1312 (8th Cir. 1991) (defining “corruptly” in FCPA
prosecution); United States v. Mead, Cr. No. 98-240-01-AET (D. N.J.) (same).)
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GOVERNMENT’S PROPOSED JURY INSTRUCTION NO. 5
“On or About” and “In or About” -- Explained
The Indictment charges that the offenses alleged in Counts 1 through 16 of the Indictment
were committed “on or about” a certain date or “in or about” a certain month.
Although it is necessary for the government to prove beyond a reasonable doubt that the
offense was committed on a date reasonably near the dates alleged in Counts 1 through 16 of the
Indictment, it is not necessary for the government to prove that the offense was committed
precisely on the date charged.
(1A O’Malley, Grenig, and Lee, Federal Jury Practice and Instructions, Section 13.05 (5th ed.
2000) (modified to reflect Indictment also contains phrase “in or about”).)
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GOVERNMENT’S PROPOSED JURY INSTRUCTION NO. 6
Credibility of Witnesses -- Immunized Witness
The testimony of an immunized witness, someone who has been told either that his or her
crimes will go unpunished in return for testimony or that his or her testimony will not be used
against him or her in return for that cooperation, must be examined and weighed by the jury with
greater care than the testimony of someone who is appearing in court without the need for such
an agreement with the government.
James Creaghan, Dumebi Kachikwu, George Knost, Jean Michel-Malek, John Melton,
and Noreen Griffin (f/k/a “Noreen Wilson”) may be considered to be immunized witnesses in
this case.
The jury must determine whether the testimony of an immunized witness has been
affected by self-interest, or by the agreement he or she has with the government, or by his or her
own interest in the outcome of this case, or by prejudice against the defendant.
(1A O’Malley, Grenig, and Lee, Federal Jury Practice and Instructions, Section 15.03 (5th ed.
2000) (modified to reflect names of immunized witnesses).)
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GOVERNMENT’S PROPOSED JURY INSTRUCTION NO. 7
Credibility of Witnesses -- Accomplice
The testimony of an alleged accomplice, someone who said he or she participated in the
commission of a crime, must be examined and weighed by the jury with greater care than the
testimony of a witness who did not participate in the commission of that crime.
James Creaghan, Vernon Jackson, Dumebi Kachikwu, George Knost, John Melton, Brett
Pfeffer, and Noreen Wilson, among others, may be considered to be alleged accomplices in this
case.
The fact that alleged accomplices, namely, Vernon Jackson and Brett Pfeffer, have
entered pleas of guilty to any of the offenses charged is not evidence of the guilt of any other
person including the defendant.
The jury must determine whether the testimony of the accomplice has been affected by
self-interest, or by an agreement he may have with the government, or by his own interest in the
outcome of this case, or by prejudice against the defendant.
(1A O’Malley, Grenig, and Lee, Federal Jury Practice and Instructions, Section 15.04 (5th ed.
2000) (modified to reflect names of alleged accomplices likely to be called by the government in
its case-in-chief, which may be amended depending on events at trial and if the defense calls any
additional accomplices, such as Jennifer Douglas Abubakar, Andrea Jefferson, Mose Jefferson,
and Phillip Jones).)
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GOVERNMENT’S PROPOSED JURY INSTRUCTION NO. 8
Ethical Rules
There has been evidence presented in this trial that Defendant Jefferson may have
violated certain ethical rules promulgated by the United States House of Representatives. You
are instructed that, should you find that Defendant Jefferson violated these ethical rules, such a
violation is not evidence, standing alone, that Defendant Jefferson committed the crimes charged.
You may, however, consider evidence of ethical violations, along with all of the other evidence
presented as trial, to determine whether the United States has proven all of the necessary
elements of the crimes with which Defendant Jefferson has been charged.
(See United States v. Harvey, 3:06-CR-00023-NKM, Dkt. Entry 62 at 10 (W.D. Va.); see also
United States v. Diggs, 613 F.2d 988 (D.C. Cir. 1979) (House Rules admitted as proof of
materiality, motive, and intent ), cert. denied, 446 U.S. 982 (1980); United States v. Harvard,
103 F.3d 412, 414-22 (5th Cir. 1997); United States v. Parks, 68 F.3d 860, 866 (5th Cir. 1995);
United States v. DeLucca, 630 F.2d 294, 296-97 (5th Cir. 1980); United States v. Bailin, No. 89
CR 668, 1990 WL 114741, at *10 (N.D. Ill. July 17, 1990); United States v. Marker, No. 94-
40002-01-SAC, 1994 WL 192018, at *9-10 (D. Kan. Jul. 17, 1994).)
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GOVERNMENT’S PROPOSED JURY INSTRUCTION NO. 9
Deliberate Ignorance -- Explained
The government may prove that Defendant Jefferson, in certain instances, acted
“knowingly” by inferences drawn from proof beyond a reasonable doubt that the defendant
deliberately closed his eyes to what would otherwise have been obvious to him. No one can
avoid responsibility for a crime by deliberately ignoring what is obvious. Stated another way, a
defendant’s knowledge of a fact may be inferred upon willful blindness to the existence of a fact.
It is, of course, entirely up to you as to whether you find any deliberate ignorance or
deliberate closing of the eyes and inferences to be drawn from any such evidence.
You may not conclude that Defendant Jefferson had knowledge, however, from proof of a
mistake, negligence, carelessness, or a belief in an inaccurate proposition. Instead, the
government must prove beyond a reasonable doubt that the defendant purposely and deliberately
contrived to avoid learning all of the facts.
(1A O’Malley, Grenig, and Lee, Federal Jury Practice and Instructions, Section 17.09 (5th ed.
2000) (modified); United States v. Ruhe, 191 F.3d 376 (4th Cir. 1999); United States v. Guay,
108 F.3d 545 (4th Cir. 1997).)
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SPECIAL INSTRUCTIONS:
CONSPIRACY
INSTRUCTIONS
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GOVERNMENT’S PROPOSED JURY INSTRUCTION NO. 10
The Nature of the Offense Charged
Count 1 of the Indictment charges that from in or about January 2001 until in or about
August 2005, within the Eastern District of Virginia and elsewhere, Defendant Jefferson came to
some type of agreement or understanding to commit certain offenses against the United States,
namely, (a) to solicit and accept bribes, (b) to deprive United States citizens and the House of
Representatives of their right to the defendant’s honest services through wire fraud, and (c) to
pay bribes to foreign officials, and then acted to achieve the goals of the alleged conspiracy or
agreement or understanding in that one of its members thereafter undertook one or more acts in
furtherance of the conspiracy, as described in the Overt Acts section of Count 1 of the
Indictment.
Count 2 of the Indictment charges that from in or about August 2000 until in or about
March 2005, in the Eastern District of Virginia and elsewhere, the defendant came to some type
of agreement or understanding to commit an offense against the United States, namely, (a) to
solicit and accept bribes and (b) to deprive United States citizens and the House of
Representatives of their right to the defendant’s honest services through wire fraud, and then
acted to achieve the goals of the alleged conspiracy or agreement or understanding in that one of
its members thereafter undertook one or more acts in furtherance of the conspiracy, as described
in the Overt Acts section of Count 2 of the Indictment.
(See Indictment, Counts One and Two, ¶¶ 39-139, 140-205; 2 O’Malley, Grenig, and Lee,
Federal Jury Practice and Instructions, Section 31.01 (5th ed. 2000) (modified).)
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GOVERNMENT’S PROPOSED JURY INSTRUCTION NO. 11
Multiple Objects (for Use with General Conspiracy Charge)
With regard to the alleged conspiracies charged in Count 1 and Count 2, the Indictment
charges that the defendant conspired to violate more than one federal law. It is charged, in other
words, in Count 1 that the defendant conspired to commit three separate, substantive crimes or
offenses. In Count 2, it is charged that the defendant conspired to commit two separate,
substantive crimes or offenses.
In such a case it is not necessary for the government to prove that Defendant Jefferson
conspired to commit all of those substantive offenses. With regard to Count 1, it would be
sufficient if the government proves, beyond a reasonable doubt, that Defendant Jefferson
conspired with someone to commit one of those offenses in Count 1; but, in that event, in order
to return a verdict of guilty, you must unanimously agree upon which of the offenses Defendant
Jefferson conspired to commit in Count 1. Similarly, with regard to Count 2, it would be
sufficient if the government proves, beyond a reasonable doubt, that Defendant Jefferson
conspired with someone to commit one of those offenses in Count 2; but, in that event, in order
to return a verdict of guilty, you must unanimously agree upon which of the offenses Defendant
Jefferson conspired to commit in Count 2.
(Eleventh Circuit Pattern Jury Instructions for Criminal Cases, Offense Instruction No. 13.2
(2003) (modified); see also Sixth Circuit Pattern Jury Instructions, Instruction No. 3.02 (2005).)
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GOVERNMENT’S PROPOSED JURY INSTRUCTION NO. 12
The Statute Defining the Offense Charged
Section 371 of Title 18 of the United States Code provides, in part, that:
If two or more persons conspire . . . to commit any offense against
the United States, or to defraud the United States, or any agency
thereof . . . and one or more of such persons do any act to effect the
object of the conspiracy, . . .
an offense against the United States has been committed.
(18 U.S.C. § 371; 2 O’Malley, Grenig, and Lee, Federal Jury Practice and Instructions, Section
31.02 (5th ed. 2000).)
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GOVERNMENT’S PROPOSED JURY INSTRUCTION NO. 13
The Essential Elements of the Offense Charged
Counts 1 and 2 of the Indictment each set forth a different conspiracy to commit a crime
prohibited by various federal laws. Count 1 alleges a conspiracy to violate: (a) the bribery
provisions under 18 U.S.C. § 201(b); (b) the honest services provisions under 18 U.S.C. §§ 1343
and 1346; and (c) the Foreign Corrupt Practices Act under 15 U.S.C. § 78dd-2(a). Count 2
alleges a conspiracy to violate: (a) the bribery provisions under 18 U.S.C. § 201(b); and (b) the
honest services provisions under 18 U.S.C. §§ 1343 and 1346. The specific elements of each of
these crimes will be discussed later in these instructions.
It is a crime for two or more persons to conspire, or agree, to commit a criminal act, even
if they never actually achieve their goal. A conspiracy is a kind of criminal partnership. For you
to find the defendant guilty on Count 1 and Count 2, respectively, the government must prove the
following three (3) essential elements beyond a reasonable doubt:
First: that two or more persons conspired, or agreed, to commit the
crimes identified in the particular count;
Second: that the defendant knowingly and intentionally joined the
conspiracy; and
Third: that a member of the conspiracy did one of the overt acts described
in the Indictment for the purpose of advancing, furthering, or
helping the object or purpose of the conspiracy.
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With regard to Count 1, you must be convinced that the government has proved all of
these elements beyond a reasonable doubt in order to find the defendant guilty of the conspiracy
charge alleged in Count 1.
With regard to Count 2, you must be convinced that the government has proved all of
these elements beyond a reasonable doubt in order to find the defendant guilty of the conspiracy
charge alleged in Count 2.
(See Sixth Circuit Pattern Criminal Jury Instructions, No. 3.01A (2005) (modified); see also 2
O’Malley, Grenig, and Lee, Federal Jury Practice and Instructions, Section 31.03 (5th ed.
2000); United States v. Anderson, 611 F.2d 504, 510 (4th Cir. 1979).)
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GOVERNMENT’S PROPOSED JURY INSTRUCTION NO. 14
Conspiracy -- Existence of an Agreement
A criminal conspiracy is an agreement or a mutual understanding knowingly made or
knowingly entered into by at least two people to violate the law by some joint or common plan or
course of action. A conspiracy is, in a very true sense, a partnership in crime.
A conspiracy or agreement to violate the law, like any other kind of agreement or
understanding, need not be formal, written, or even expressed directly in every detail.
The government must prove that Defendant Jefferson and at least one other person
knowingly and deliberately arrived at an agreement or understanding that they, and perhaps
others, would violate some laws by means of some common plan or course of action as alleged in
Count 1 and Count 2 of the Indictment. It is proof of this conscious understanding and deliberate
agreement by the alleged members that should be central to your consideration of the charge of
conspiracy.
To prove the existence of a conspiracy or an illegal agreement, the government is not
required to produce a written contract between the parties or even produce evidence of an express
oral agreement spelling out all of the details of the understanding. To prove that a conspiracy
existed, moreover, the government is not required to show that all of the people named in the
Indictment as members of the conspiracy were, in fact, parties to the agreement, or that all of the
members of the alleged conspiracy were named or charged, or that all of the people whom the
evidence shows were actually members of a conspiracy agreed to all of the means or methods set
out in the Indictment.
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Unless the government proves beyond a reasonable doubt that a conspiracy, as just
explained, actually existed, then you must acquit Defendant Jefferson.
(2 O’Malley, Grenig, and Lee, Federal Jury Practice and Instructions, Section 31.04 (5th ed.
2000) (modified); United States v. Burgos, 94 F.3d 849, 860-61 (4th Cir. 1996).)
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GOVERNMENT’S PROPOSED JURY INSTRUCTION NO. 15
Conspiracy -- Membership in an Agreement
Before the jury may find that Defendant Jefferson, or any other person, became a member
of the conspiracy charged in Count 1 and Count 2 of the Indictment, respectively, the evidence in
the case must show beyond a reasonable doubt that Defendant Jefferson knew the purpose or
goal of the agreement or understanding and deliberately entered into the agreement intending, in
some way, to accomplish the goal or purpose by this common plan or joint action.
If the evidence establishes beyond a reasonable doubt that Defendant Jefferson knowingly
and deliberately entered into an agreement to commit the offenses alleged in Count 1 and Count
2 of the Indictment, the fact that the defendant did not join the agreement at its beginning, or did
not know all of the details of the agreement, or did not know all of his co-conspirators, or did not
participate in each act of the agreement, or did not play a major role in accomplishing the
unlawful goal, or had only a slight connection with the conspiracy is not important to your
decision regarding membership in the conspiracy.
Merely associating with others and discussing common goals, mere similarity of conduct
between or among such persons, merely being present at the place where a crime takes place or is
discussed, or even knowing about criminal conduct does not, of itself, make someone a member
of the conspiracy or a conspirator.
(2 O’Malley, Grenig, and Lee, Federal Jury Practice and Instructions, Section 31.05 (5th ed.
2000) (modified); Blumenthal v. United States, 332 U.S. 539, 557 (1947); United States v.
Burgos, 94 F.3d 849, 859-62 (4th Cir. 1996); United States v. Banks, 10 F.3d 1044, 1054 (4th
Cir. 1993).)
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GOVERNMENT’S PROPOSED JURY INSTRUCTION NO. 16
Acts and Declarations of Co-Conspirators
Evidence has been received in this case that certain persons, who are alleged in Count 1
or Count 2 of the Indictment to be co-conspirators of Defendant Jefferson, have done or said
things during the existence or life of the alleged conspiracy charged in Count 1 or Count 2 in
order to further or advance its goals.
Such acts and statements of these other individuals may be considered by you in
determining whether or not the government has proven the charges in Counts 1 and 2 of the
Indictment against Defendant Jefferson.
Since these acts may have been performed and these statements may have been made
outside the presence of Defendant Jefferson and even done or said without the defendant’s
knowledge, these acts or statements should be examined with particular care by you before
considering them against the defendant who did not do the particular act or make the particular
statement.
(2 O’Malley, Grenig, and Lee, Federal Jury Practice and Instructions, Section 31.06 (5th ed.
2000).)
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GOVERNMENT’S PROPOSED JURY INSTRUCTION NO. 17
“Overt Acts” -- Defined
In order to sustain its burden of proof under Count 1 and Count 2 of the Indictment, the
government must prove beyond a reasonable doubt that one of the members of the alleged
conspiracy or agreement knowingly performed at least one overt act and that this overt act was
performed during the existence or life of the conspiracy and was done to somehow further the
goals of the conspiracy or agreement.
The term “overt act” means some type of outward, objective action performed by one of
the parties to or one of the members of the agreement or conspiracy which evidences that
agreement.
Although you must unanimously agree that the same overt act was committed, the
government is not required to prove more than one of the overt acts charged.
The overt act may, but for the alleged illegal agreement, appear totally innocent and legal.
(2 O’Malley, Grenig, and Lee, Federal Jury Practice and Instructions, Section 31.07 (5th ed.
2000).)
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GOVERNMENT’S PROPOSED JURY INSTRUCTION NO. 18
Success of Conspiracy Immaterial
The government is not required to prove that the parties to or members of the alleged
agreement or conspiracy were successful in achieving any or all of the objects of the agreement
or conspiracy.
(2 O’Malley, Grenig, and Lee, Federal Jury Practice and Instructions, Section 31.08 (5th ed.
2000).)
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GOVERNMENT’S JURY INSTRUCTION NO. 19
Unindicted, Unnamed or Separately Tried Co-Conspirators
Now, some of the people who may have been involved in these events are not on trial.
This does not matter. There is no requirement that all members of a conspiracy be charged and
prosecuted, or tried together in one proceeding.
Nor is there any requirement that the names of the other conspirators be known. An
indictment can charge a defendant with a conspiracy involving people whose names are not
known, as long as the government can prove that the defendant conspired with one or more of
them. Whether they are named or not does not matter.
(Sixth Circuit Pattern Criminal Jury Instructions, No. 3.06 (2005).)
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GOVERNMENT’S PROPOSED JURY INSTRUCTION NO. 20
Relationship Between Substantive Offense and Conspiracy to Commit Offense
Under the law, conspiracy to commit a crime is an entirely separate and distinct charge
from the actual violation or substantive charge which may be the object of a conspiracy. All of
the elements of bribery, honest services fraud, or bribery of a foreign official need not be met in
order for you to find that there was a conspiracy. All that you must find is that there was an
agreement to commit those offenses and an overt act taken in furtherance of the conspiracy.
(United States v. Bayer, 331 U.S. 532, 542 (1947); United States v. Warshawsky, 20 F.3d 204,
208 (6th Cir. 1994); see also Eleventh Circuit Pattern Jury Instructions for Criminal Cases, Basic
Instruction No. 8.)
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GOVERNMENT’S PROPOSED JURY INSTRUCTION NO. 21
Conspiracy Venue
Some of the events that you have heard about happened in other places. There is no
requirement that the entire conspiracy take place here in the Eastern District of Virginia. But for
you to return a guilty verdict on a conspiracy charge, the government must convince you that
either the agreement, or one of the overt acts, took place here in the Eastern District of Virginia.
Unlike all the other elements that I have described, this is a fact that the government only
has to prove by a preponderance of the evidence. This means the government only has to
convince you that it is more likely than not that part of the conspiracy took place here.
Remember that all the other elements I have described must be proved beyond a reasonable
doubt.
This concludes my instructions on Count 1 and Count 2 of the Indictment.
(Sixth Circuit Pattern Criminal Jury Instructions, No. 3.07 (2005).)
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SPECIAL INSTRUCTIONS:
BRIBERY
INSTRUCTIONS
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GOVERNMENT’S PROPOSED JURY INSTRUCTION NO. 22
The Nature of the Offense Charged
The conspiracy counts just discussed -- Counts 1 and 2 -- charge that one of the objects of
those conspiracies was to violate Title 18, United States Code, Section 201(b)(2)(A), which
makes it a federal crime for a public official to solicit or receive a bribe in return for being
influenced in the performance of an official act. Counts 3, 4, and 16 charge substantive
violations of Title 18, United States Code, Section 201(b)(2)(A), as described below. The nature
of the conspiracies charged in Counts 1 and 2 has already been described.
Count 3 of the Indictment charges that from in or about January 2001 through in or about
August 2005, within the Eastern District of Virginia and elsewhere, Defendant Jefferson, then a
public official, corruptly demanded, sought, or received something of value personally, or for any
other person or entity, in order to be influenced in the performance of official acts. Count 4 of
the Indictment charges that from in or about June 2004 through in or about August 2005, within
the Eastern District of Virginia and elsewhere, Defendant Jefferson, then a public official,
corruptly demanded, sought, or received something of value personally, or for any other person
or entity, in order to be influenced in the performance of official acts.
Count 16 of the Indictment charges that from in or about August 2000 through in or about
August 2005, in the Eastern District of Virginia and elsewhere, Defendant Jefferson, through The
Office of Congressman William J. Jefferson, engaged in a pattern of racketeering activity through
the commission of Racketeering Acts 1 through 12, which will be discussed in detail later in
these instructions. Those Racketeering Acts allege, among other things, that Defendant Jefferson
participated in a pattern of criminal conduct that involved corruptly demanding, seeking, or
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receiving something of value personally, or on behalf of various family members, in return for
Defendant Jefferson’s agreement to use his office, The Office of Congressman William J.
Jefferson, in the performance of official acts to promote the business interests of various
companies and businesspersons.
(See Indictment, Counts One, Two, Three, Four, and Sixteen, ¶¶ 39-139, 140-205, 206-07, 208-
09, 219-70; 2 O’Malley, Grenig, and Lee, Federal Jury Practice and Instructions, Section 27.04
(5th ed. 2000) (modified).)
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GOVERNMENT’S PROPOSED JURY INSTRUCTION NO. 23
The Statute Defining the Offense Charged
Section 201(b)(2)(A) of Title 18, United States Code provides, in part, that:
Whoever --
(2) being a public official . . . directly or indirectly, corruptly
demands, seeks, receives, accepts or agrees to receive or accept
anything of value personally or for any other person or entity, in
return for:
(A) being influenced in the performance of any official act; . . .
shall be guilty of an offense against the United States.
(18 U.S.C. § 201(b); 2 O’Malley, Grenig, and Lee, Federal Jury Practice and Instructions,
Section 27.05 (5th ed. 2000).)
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GOVERNMENT’S PROPOSED JURY INSTRUCTION NO. 24
The Essential Elements of the Offense Charged
In order to sustain its burden of proof for the crime of demanding, seeking, or receiving a
bribe by a public official, the government must prove the following three (3) essential elements
beyond a reasonable doubt:
First: Defendant Jefferson directly or indirectly demanded, sought,
received or accepted, or agreed to receive or accept, something of
value personally or for any other person or entity;
Second: Defendant Jefferson was, at that time, a public official of the
United States; and
Third: Defendant Jefferson demanded, sought, received, accepted or
agreed to receive or accept the item of value corruptly in return for
being influenced in the performance of any official act.
(2 O’Malley, Grenig, and Lee, Federal Jury Practice and Instructions, Section 27.06 (5th ed.
2000) (modified); see also 18 U.S.C. § 201(b)(2)(A).)
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GOVERNMENT’S PROPOSED JURY INSTRUCTION NO. 25
“Public Official” -- Defined
The term “public official” means Member of Congress, or an officer or employee or
person acting for or on behalf of the United States, or any department, agency, or branch of
Government thereof, in any official function, under or by authority of any such department,
agency, or branch of government.
The term “public official” includes any employee of the United States government as well
as any person who is performing work for or acting on behalf of the United States government.
(2 O’Malley, Grenig, and Lee, Federal Jury Practice and Instructions, Section 27.07 (5th ed.
2000).)
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GOVERNMENT’S PROPOSED JURY INSTRUCTION NO. 26
“Official Act” -- Defined
The term “official act” means any decision or action on any question, matter, cause, suit,
proceeding or controversy, which may at any time be pending, or which may by law be brought
before any public official, in such official’s official capacity, or in such official’s place of trust or
profit.
The term “official act” includes the decisions or actions generally expected of the public
official. These decisions or actions do not need to be specifically prescribed by any law, rule, or
job description to be considered to be an “official act.” Thus, “official acts” include those duties
and activities customarily associated with a particular position.
It is not a defense that the offer or promise, or the demand or receipt, of anything of value
concerned an official act which was actually lawful, desirable, or even beneficial to the public. It
is also not a defense that the public official did not have the authority, power, or ability to
perform the act for which the thing of value was given, offered or promised, demanded, sought,
or received or accepted.
(2 O’Malley, Grenig, and Lee, Federal Jury Practice and Instructions, Sections 27.08, 27.11,
27.12 (5th ed. 2000) (modified); see 18 U.S.C. § 201(a); see also United States v. Birdsall, 233
U.S. 223, 230-31 (1914); United States v. Biaggi, 853 F.2d 89, 97 (2d Cir. 1988); United States
v. Traficant, 4:01CR207 (N.D. Ohio 2001); United States v. Bustamante, Crim. Action No. SA-
93-CR-39 (W.D. Tex. 1993). The jury instructions from Traficant and Bustamante were
attached as Exhibits 1 and 2 to Government’s Opposition to Defendant’s Motion to Exclude
Expert Testimony, Dkt. Entry 140.)
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GOVERNMENT’S PROPOSED JURY INSTRUCTION NO. 27
“Anything of value” -- Defined
The phrase “anything of value” means any item, whether tangible or intangible, that the
person giving or offering or the person demanding or receiving considers to be worth something.
The phrase “anything of value” includes a sum of money, shares of stock, percentage of revenue,
commissions, favorable treatment, a job, or special consideration.
(2 O’Malley, Grenig, and Lee, Federal Jury Practice and Instructions, Section 27.10 (5th ed.
2000) (modified).)
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SPECIAL INSTRUCTIONS:
HONEST SERVICES
WIRE FRAUD INSTRUCTIONS
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GOVERNMENT’S PROPOSED JURY INSTRUCTION NO. 28
The Nature of the Offense Charged
As mentioned before, the conspiracy counts -- Counts 1 and 2 -- charge that one of the
objects of those conspiracies was to violate Title 18, United States Code, Sections 1343 and
1346, which make it a federal crime for anyone to use interstate wire communications facilities
in carrying out a scheme to fraudulently deprive another of the intangible right of honest services.
Counts 5 through 10 and Count 16 charge violations of Title 18, United States Code, Sections
1343 and 1346, as described below. The nature of the conspiracies charged in Counts 1 and 2
has already been described.
Counts 5 through 10 of the Indictment charge that, from approximately January 2001
until approximately August 2005, within the Eastern District of Virginia and elsewhere,
Defendant Jefferson, aided and abetted by others, devised a scheme to defraud and deprive the
citizens of the United States and the United States House of Representatives of their right to the
honest and faithful services of Defendant Jefferson, a Member of the United States House of
Representatives, performed free from deceit, favoritism, bias, self-enrichment, self-dealing,
concealment, and conflict of interest. Specifically, Counts 5 through 10 of the Indictment charge
that, for the purpose of executing this scheme to defraud and deprive, Defendant Jefferson, aided
and abetted by others, caused to be transmitted by means of wire communication in interstate
commerce: [Count 5] a credit card charge of $14,885.95 at Dulles International Airport in
Loudoun County, Virginia; [Count 6] one facsimile from New Orleans sent to McLean,
Virginia; [Count 7] a facsimile from Washington, D.C., sent to McLean, Virginia; [Count 8]
another facsimile from Washington, D.C., sent to McLean, Virginia; [Count 9] an electronic
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funds transfer from a bank in McLean, Virginia to The ANJ Group’s bank account in New
Orleans, Louisiana; and [Count 10] a telephone call from Ghana in West Africa to a co-
conspirator in Kentucky.
As mentioned before, Count 16 of the Indictment charges that from in or about August
2000 through in or about August 2005, in the Eastern District of Virginia and elsewhere,
Defendant Jefferson, through The Office of Congressman William J. Jefferson, engaged in a
pattern of racketeering activity through the commission of Racketeering Acts 1 through 12,
which will be discussed in detail later in these instructions. Those Racketeering Acts allege,
among other things, that Defendant Jefferson participated in a pattern of criminal conduct that
also concealed his and his family’s financial interests in various business ventures by, among
other things, using nominee companies, employing misleading business agreements, and omitting
material facts in public filings.
(See Indictment, Counts One, Two, Five through Ten, and Sixteen, ¶¶ 39-139, 140-205, 210-12,
219-70; 2A O’Malley, Grenig, and Lee, Federal Jury Practice and Instructions, Section 47.05
(5th ed. 2000) (modified).)
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GOVERNMENT’S PROPOSED JURY INSTRUCTION NO. 29
The Statute Defining the Offense Charged
Title 18, United States Code, Sections 1346 and 1343 define the crime of honest services
wire fraud. Section 1343 provides, in part, that:
Whoever, having devised . . . any scheme or artifice to defraud . . .
by means of false or fraudulent pretenses, representations, or
promises, transmits or causes to be transmitted by means of wire . .
. communication in interstate or foreign commerce, any writings,
signs, signals, pictures, or sounds for the purpose of executing such
scheme or artifice . . .
shall be guilty of an offense against the United States.
Section 1346, in turn, provides that:
[T]he term “scheme or artifice to defraud” [in Section 1343]
includes a scheme or artifice to deprive another of the intangible
right of honest services.
(18 U.S.C. §§ 1346, 1343; 2A O’Malley, Grenig, and Lee, Federal Jury Practice and
Instructions, Section 47.06 (5th ed. 2000) (modified).)
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GOVERNMENT’S PROPOSED JURY INSTRUCTION NO. 30
The Essential Elements of the Offense Charged
In order to sustain its burden of proof for the crime of using a wire communication in
interstate or foreign commerce to deprive another of the intangible right of honest services, the
government must prove each of the following three (3) essential elements beyond a reasonable
doubt:
First: Defendant Jefferson knowingly devised or knowingly participated
in a scheme to defraud or deprive the citizens of the United States
or the United States House of Representatives of their intangible
right to honest services;
Second: Defendant Jefferson did so willfully and with an intent to defraud; and
Third: In advancing, or furthering, or carrying out this scheme to defraud,
Defendant Jefferson transmitted, or caused to be transmitted, any
writing, signal, or sound by means of a wire communication in
interstate or foreign commerce.
A person causes a wire communication to be transmitted when he knows that the wire
communication will be used in the ordinary course of business or when he can reasonably foresee
such use. It does not matter whether the wire communication was itself false or deceptive so
long as the wire communication was incident to an essential part of the scheme, nor does it
matter whether the scheme or plan was successful or that any money or property was obtained.
It is not necessary that the government prove all of the details alleged in the indictment
concerning the precise nature and purpose of the scheme; or that the material transmitted by wire
was itself false or fraudulent; or that the alleged scheme actually succeeded in defrauding anyone;
or that the use of interstate wire communications facilities was intended as the specific or
exclusive means of accomplishing the alleged fraud; or that the defendant personally used the
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wire communication facility.
What must be proved beyond a reasonable doubt is that the defendant, with intent to
defraud, knowingly and willfully devised, intended to devise, or participated in a scheme to
defraud substantially the same as the one alleged in the Indictment; and that the use of the
interstate wire communications facilities was closely related to the scheme because the defendant
either used, or caused to be used, wire communications facilities in interstate commerce in an
attempt to execute or carry out the scheme.
Each separate use of the interstate wire communications facilities in furtherance of a
scheme to defraud constitutes a separate offense.
(2A O’Malley, Grenig, and Lee, Federal Jury Practice and Instructions, Section 47.07 (5th ed.
2000) (modified); Eleventh Circuit Pattern Jury Instructions for Criminal Cases, Offense
Instruction No. 51.2 (2003). See Fifth Circuit Pattern Jury Instructions, Criminal Cases,
Instruction No. 2.60 (2001); Ninth Circuit Pattern Jury Instructions – Criminal, Instruction No.
8.102, 8.103 (2003); Tenth Circuit Pattern Jury Instructions for Criminal Cases, Instruction No.
2.57 (2006); Neder v. United States, 527 U.S. 1, 25 (1999); Schmuck v. United States, 489 U.S.
705, 711 (1989); United States v. Gibbs, 132 Fed. Appx. 502, 503 (4th Cir. 2005) (unpublished);
United States v. ReBrook, 58 F.3d 961, 966 (4th Cir. 1995);United States v. Garlick, 240 F.3d
789, 792 (9th Cir. 2001) (each use of wire constitutes separate violation). See also United States
v. Harvey, 3:06-CR-00023-NKM, Dkt. Entry 62 at 21 (W.D. Va.).)
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GOVERNMENT’S PROPOSED JURY INSTRUCTION NO. 31
“Scheme to Defraud or Deprive” and “Deprive
Another of the Intangible Right to Honest Services” -- Defined
Public officials inherently owe a duty to the public to act in the public’s best interest. If,
instead, the official accepts something of value with an intent to be influenced -- such as when
the official accepts a payment with the expectation that the official will be influenced in the
performance of particular activities related to the official’s position -- the official has defrauded
the public of the official’s honest services even though no tangible loss to the public has been
shown because the public official deprived the public of its right to honest and faithful
government.
In addition, when an official acting with the intent to defraud, fails to disclose a personal
interest in a matter over which he or she has decision-making power, the public is deprived of its
right to honest services because it is deprived of its right either to disinterested decision making
itself or full disclosure as to the official’s motivation behind an official act. It is not enough for
the government to prove that the defendant failed to disclose such a conflict of interest. Rather,
the government must prove that the defendant acted with the intent to defraud. The government
proves intent to defraud if it proves that the scheme was reasonably calculated to deceive persons
of ordinary prudence and comprehension. A public official’s duty to disclose material
information need not be expressly imposed by statute or code because a public official inherently
owes a fiduciary duty to the public to make governmental decisions in the public’s best interest.
The focus of honest services fraud is on the fraudulent and deceptive conduct of the
public official who abuses a position of trust, and the government is not required to link any
particular payment to a specific act on the part of the public official.
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It is not necessary for the government to prove that the scheme actually succeeded. Also,
the offense of “honest services” fraud is not concerned with the wisdom or results of the public
official’s decisions, but rather with the manner in which the public official makes his decisions.
Thus, the decision-making process may be corrupted and the public is deprived of honest
services even though the public official comes to the right decision for the wrong reason.
(Eleventh Circuit Pattern Jury Instructions for Criminal Cases, Offense Instruction No. 50.2
(2003); see United States v. Mandel, 591 F.2d 1347, 1362 (4th Cir. 1979); United States v.
Lopez-Luis, 102 F.3d 1164, 1169 n.13 (11th Cir. 1997) (“That the result of the bribed
commissioner’s vote actually benefits the electorate would not change the fraudulent nature of
her conduct. Sections 1341 and 1346 do not address the wisdom or results of a legislative
decision; rather, they concern the manner in which officials make their decisions.”); United
States v. Blamer, 114 F.3d 758, 766 (8th Cir.), cert. denied, 522 U.S. 938 (1997) (irrelevant that
legislation never passed; honest services fraud committed when public official pursues
“dishonest ends, not merely when [he] achieves a dishonest goal”); see also United States v.
Harvey, 3:06-CR-00023-NKM, Dkt. Entry 62 at 22 (W.D. Va.).)
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GOVERNMENT’S PROPOSED JURY INSTRUCTION NO. 32
“Duty to Disclose” -- Defined
A public official has an affirmative duty to disclose material information to the public
employer. When an official fails to disclose a personal interest in a matter over which he has
decision-making power, the public is deprived of its right either to disinterested decision making
itself or full disclosure as to the official’s motivation behind an official act.
A public official’s duty to disclose material information need not be expressly imposed
by statute or code because a public official inherently owes a fiduciary duty to the public to make
governmental decisions in the public’s best interest. Thus, illicit personal gain by a public
official, such as when an official accepts a bribe or gratuities intended to coax official action, or
personally benefits from an undisclosed conflict of interest, is prohibited by the law because it
deprives the public of its right to the honest services of the public official.
(United States v. Mandel, 591 F.2d 1347, 1363 (4th Cir. 1979), overruled on other grounds,
United States v. Mandel, 602 F.2d 653 (4th Cir. 1979) (en banc); United States v. Woodward,
149 F.3d 46, 62 (1st Cir. 1998), cert. denied, 525 U.S. 1138 (1999) (citing United States v.
Sawyer, 85 F.3d 713, 724 (1st Cir. 1996)); see United States v. Kincaid-Chauncey, 2009 U.S.
App. LEXIS 3591 (9th Cir. 2009).)
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GOVERNMENT’S PROPOSED JURY INSTRUCTION NO. 33
“Conflict of Interest” -- Defined
A conflict of interest is “any personal interest or profit a public official expects to derive
or has derived from any transaction in which he participates in the course of his public
employment.”
It is sufficient that the public official participated in the matter without disclosing his
conflict of interest, and with the intent to defraud. The government is not required to prove that
the public official’s influence or vote was decisive on the issue.
A conflict of interest may exist at any time a public official acts in his capacity as a public
official, which may include not only voting on official matters, but also influencing or lobbying
other public officials regarding official matters.
(United States v. Mandel, 591 F.2d 1347, 1363 (4th Cir. 1979), overruled on other grounds,
United States v. Mandel, 602 F.2d 653 (4th Cir. 1979) (en banc)); Eleventh Circuit Pattern Jury
Instructions for Criminal Cases, Offense Instruction No. 51.2 (2003); United States v. Kincaid-
Chauncey, 2009 U.S. App. LEXIS 3591 (9th Cir. 2009); United States v. Lopez-Luis, 102 F.2d
1164, 1169 (11th Cir. 1997) (bribery of single official in multi-member decision-making body
where public official took steps to ensure that majority of commissioners voted with her);
Shushan v. United States, 117 F.2d 110, 115 (5th Cir. 1941) (in case involving bribery of two
commissioners who attempted to influence other commissioners, court held that “the fact that the
official who is bribed is only one of several and could not award the contract by himself does not
change the character of the [fraudulent] scheme”); United States v. Waymer, 55 F.3d 564, 572
(11th Cir. 1995) (honest services conviction upheld where public official had undisclosed
financial interest in city contractor, even though defendant “did nothing to help [the contractor]
procure or retain the school board contracts and virtually nothing to help [it] perform on the
contracts”).)
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GOVERNMENT’S PROPOSED JURY INSTRUCTION NO. 34
“Scheme” -- Defined
The word “scheme” includes any plan or course of action intended to deceive or cheat
someone.
(Eleventh Circuit Pattern Jury Instructions for Criminal Cases, Offense Instruction No. 51.2
(2003).)
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GOVERNMENT’S PROPOSED JURY INSTRUCTION NO. 35
“Materiality” -- Defined
A statement, representation, or omission is “material” if it has a natural tendency to
influence or is capable of influencing a decision or action of the person or governmental agency
to whom it is addressed. There is no requirement that the statement, representation, or omission
actually influence or affect the decision making process of the person or governmental agency to
whom it is addressed.
(See 1A O’Malley, Grenig, and Lee, Federal Jury Practice and Instructions, Section 16.11 (6th
ed. 2008) (modified); United States v. Norris, 749 F.2d 1116, 1122 (4th Cir. 1984), cert. denied,
471 U.S. 1065 (1985); see also United States ex rel. Berge v. Board of Trustees of the Univ. of
Ala., 104 F.3d 1453, 1460 (4th Cir. 1997) (citing Norris definition of materiality with approval).)
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GOVERNMENT’S PROPOSED JURY INSTRUCTION NO. 36
“Intent to Defraud” -- Defined
To act with intent to defraud means to act knowingly and with the specific intent to
deceive or to cheat, ordinarily for the purpose of causing some deprivation or loss to another of
money, property, or the right to an employee’s honest services.
The intent of a person or the knowledge that a person possesses at any given time is not
ordinarily proven directly because there is no way of directly scrutinizing the workings of the
human mind. In determining the issue of what a person knew or what a person intended at a
particular time, you may consider any statements made or omitted or act done or omitted by that
person, together with all other acts and circumstances received in evidence which may aid in
your determination of that person’s knowledge or intent.
You may infer, but you are certainly not required to infer, that a person intends the natural
and probable consequences of acts knowingly done or knowingly omitted. It is entirely up to
you, however, to decide what facts to find from the evidence received during this trial.
(1A O’Malley, Grenig, & Lee, Federal Jury Practice and Instructions, Sections 16.07, 17.07 (5th
ed. 2000) (modified); see also Eleventh Circuit Pattern Jury Instructions for Criminal Cases,
Offense Instruction No. 51.2 (2003); United States v. Harvey, 3:06-CR-00023-NKM, Dkt. Entry
62 at 23 (W.D. Va.).)
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GOVERNMENT’S PROPOSED JURY INSTRUCTION NO. 37
Dual Intent -- Defined
A public official does not commit honest services fraud if his intent was limited to the
cultivation of a business or political friendship. If instead, or in addition, there is an intent on the
part of the public official to be improperly influenced in his official duties, then you may find a
violation of the law prohibiting honest services fraud. If there is both the intent to cultivate a
business or political relationship and the intent to be improperly influenced in official duties,
then in that case as well you may find a violation of the law prohibiting honest services fraud.
In other words, you may find the defendant guilty of honest services fraud if you find,
beyond a reasonable doubt, that he had dual intent, that is, that he intended both a lawful and an
unlawful purpose to some degree.
(United States v. Woodward, 149 F.3d 46, 71 (1st Cir. 1998), cert. denied, 525 U.S. 1138
(1999).)
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GOVERNMENT’S PROPOSED JURY INSTRUCTION NO. 38
Use of Interstate Wire Communication
The phrase “transmits by means of wire communication in interstate or foreign
commerce” means to send from one state to another, or to send from one country to the United
States or from the United States to another country, by means of telephone or telegraph lines.
This includes, among other things, the sending of facsimiles (i.e., faxes), the use of credit cards,
the electronic transfer of funds, and telephone calls, as long as the communication is between
states or is between the United States and a foreign country.
It is not necessary for the United States to prove that the information transmitted by
means of wire communication in interstate or foreign commerce was itself false or fraudulent.
Nor does the United States have to prove that Defendant Jefferson actually used a wire
communication in interstate or foreign commerce or that they even intended that anything be
transmitted in interstate or foreign commerce by means of a wire communication.
Instead, the United States must prove beyond a reasonable doubt that a wire
communication in interstate or foreign commerce was, in fact, used in some manner to further, or
to advance, or to carry out that scheme to defraud or deprive, and that Defendant Jefferson knew
of this or could reasonably foresee the use of the wire communication in interstate or foreign
commerce would follow in the ordinary course of business or events.
Each separate use of wire communications in interstate or foreign commerce in
furtherance of a scheme to defraud or deprive constitutes a separate offense.
(2A O’Malley, Grenig, & Lee, Federal Jury Practice and Instructions, Sections 47.08 (5th ed.
2000) (modified); see also United States v. Harvey, 3:06-CR-00023-NKM, Dkt. Entry 62 at 24
(W.D. Va.).)
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GOVERNMENT’S PROPOSED JURY INSTRUCTION NO. 39
Official Action Was Lawful Is Not a Defense
The crime of honest services fraud addresses the manner in which officials make their
decisions and not the wisdom of the official action itself. Therefore, once the decision-making
process has been corrupted, it does not matter whether a public official’s actions actually
benefitted the government agency or the public-at-large. In other words, it is not a defense to
honest services wire fraud that a public official would have performed the same official action
absent the payments he received.
(See United States v. Quinn, 359 F.3d 666, 675 (4th Cir. 2004); United States v. Antico, 275 F.3d
245, 263 (3d Cir. 2001); United States v. Lopez-Lukis, 102 F.3d 1164, 1169 n.13 (11th Cir.
1997); see also United States v. Harvey, 3:06-CR-00023-NKM, Dkt. Entry 62 at 25 (W.D. Va.).)
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SPECIAL INSTRUCTIONS:
FOREIGN CORRUPT
PRACTICES ACT
INSTRUCTIONS
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GOVERNMENT’S PROPOSED JURY INSTRUCTION NO. 40
The Nature of the Offense Charged
Count 1 of the Indictment charges that one of the objects of the conspiracy charged in that
count was to violate Title 15, United States Code, Section 78dd-2(a), the Foreign Corrupt
Practices Act, which makes it a federal crime to offer to pay, pay, promise to pay, or authorize
the payment of money or anything of value to a foreign official for purposes of influencing any
act or decision of such foreign official in his official capacity or securing any improper
advantage. Count 11 charges a violation of the Foreign Corrupt Practices Act, Title 15, United
States Code, Section 78dd-2(a), as described below.
Count 1 of the Indictment charges that, within the Eastern District of Virginia and
elsewhere, Defendant Jefferson came to some type of agreement or understanding, among others,
to pay bribes to foreign officials, and then acted to achieve the goals of the alleged conspiracy in
that Defendant Jefferson or one of his co-conspirators thereafter undertook one or more acts in
furtherance of this object of the conspiracy, as described in the Overt Acts section of Count 1 of
the Indictment. The nature and purpose of this object of the conspiracy was to offer, promise,
authorize, or make bribe payments to foreign officials of the Federal Republic of Nigeria,
including the then-Vice President of Nigeria, Atiku Abubakar, in order to advance the business
interests of the Nigerian Joint Venture, its members and stockholders, and others who had agreed
to pay Defendant Jefferson and his family things of value in return for his official acts.
Count 11 charges that, from in or about April 2005 through on or about August 3, 2005,
in the Eastern District of Virginia and elsewhere, Defendant Jefferson did willfully use and cause
to be used the mails and means and instrumentalities of interstate commerce corruptly in
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furtherance of an offer, payment, promise to pay, or authorization of the payment of money or
anything of value, namely, (1) an up-front monetary payment, including an immediate payment
of $100,000.00 in cash, and (2) a later payment that would consist of a share of the Nigerian Joint
Venture’s profits, both to the then-Vice President of Nigeria, Atiku Abubakar, to influence Vice
President Abubakar’s acts and decisions in his official capacity and to secure an improper
advantage, among other things. In so doing, Count 11 alleges that, on or about July 30, 2005,
Defendant Jefferson drove his car with $100,000.00 in cash from Arlington, Virginia, in the
Eastern District of Virginia, to Washington, D.C.; and on the same day, Defendant Jefferson
drove his car from Alexandria, Virginia, in the Eastern District of Virginia, to the Rayburn House
Office Building in Washington, D.C., to prepare a package to be delivered to then-Vice President
Abubakar.
(See Indictment, Counts One and Eleven, ¶¶ 39-139, 213-14.)
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GOVERNMENT’S PROPOSED JURY INSTRUCTION NO. 41
The Statute Defining the Offense Charged
Section 78dd-2(a) of Title 15, United States Code, which codifies the Foreign Corrupt
Practices Act, prohibits payments to any foreign official for purposes of:
(A) (i) influencing any act or decision of such foreign official in his
official capacity, (ii) inducing such foreign official to do or omit to
do any act in violation of the lawful duty of such official, or (iii)
securing any improper advantage, or (B) inducing such foreign
official to use his influence with a foreign government or
instrumentality thereof to affect or influence any act or decision of
such government or instrumentality, in order to assist [the person
or company making the payment] in obtaining or retaining business
for or with, or directing business to, any person.
(15 U.S.C. § 78dd-2(a)(1). See United States v. Kay, et al., 4:01cr00914, Dkt. Entry 142 at 14-15
(S.D. Tex.) (jury instructions in FCPA prosecution), aff’d, 513 F.3d 432, 446-52 (5th Cir. 2007),
reh’g denied, 513 F.3d 461 (5th Cir.), cert. denied, ___ U.S. ___, 129 S. Ct. 42 (2008).)
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GOVERNMENT’S PROPOSED JURY INSTRUCTION NO. 42
The Essential Elements of the Offense Charged
To sustain its burden of proof for the offense of violating the Foreign Corrupt Practices
Act, as charged in the Indictment, the government must prove the following seven (7) essential
elements beyond a reasonable doubt:
First: Defendant Jefferson is a “domestic concern,” or an officer,
director, employee, or agent of a “domestic concern,” or a
stockholder thereof acting on behalf of such domestic concern, all
concepts that I will define for you shortly;
Second: Defendant Jefferson acted corruptly and willfully;
Third: Defendant Jefferson made use of the mails or any means or
instrumentality of interstate commerce in furtherance of an
unlawful act under this statute;
Fourth: Defendant Jefferson offered, paid, promised to pay, or authorized
the payment of money or of anything of value;
Fifth: That the payment or gift was to a foreign public official or to any
person, while knowing that all or a portion of the payment or gift
would be offered, given, or promised, directly or indirectly, to a
foreign public official;
Sixth: That the payment was for one of four purposes:
-- to influence any act or decision of the foreign public
official in his official capacity;
-- to induce the foreign public official to do or omit to do any
act in violation of that official’s lawful duty;
-- to induce that foreign official to use his influence with a
foreign government or instrumentality thereof to affect or
influence any act or decision of such government or
instrumentality; or
-- to secure any improper advantage; and
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Seventh: That the payment was made to assist Defendant Jefferson in
obtaining or retaining business for or with, or directing
business to, any person.
(15 U.S.C. § 78dd-2(a). See Kay, 4:01cr00914, Dkt. Entry 142 at 15-16; aff’d, 513 F.3d 432,
446-52 (5th Cir. 2007), reh’g denied, 513 F.3d 461 (5th Cir.), cert. denied, ___ U.S. ___, 129 S.
Ct. 42 (2008); United States v. Mead, Cr. No. 98-240-01-AET (D. N.J.) (jury instructions in
FCPA prosecution).)
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GOVERNMENT’S PROPOSED JURY INSTRUCTION NO. 43
“Domestic Concern” -- Defined
For purposes of the Foreign Corrupt Practices Act, a “domestic concern” is --
(a) any individual who is a citizen, national, or resident of the United States;
and
(b) any corporation, partnership, association, joint-stock company, business
trust, unincorporated organization, or sole proprietorship which has its
principal place of business in the United States, or which is organized
under the laws of a State of the United States or a territory, possession, or
commonwealth of the United States.
In this case, the Indictment charges that Defendant Jefferson was both a domestic concern
and an “agent of a domestic concern,” because he is alleged to have been a citizen of the United
States and a de facto officer, director, employee, or agent of The ANJ Group, LLC, Global
Energy & Environmental Services, LLC, and Multi-Media Broad Band Services, Inc., which are
each further alleged to be domestic concerns. The Indictment also charges that Jennifer Douglas
Abubakar, a wife of the then-Nigerian Vice President Atiku Abubakar, was a “domestic
concern,” because she is alleged to have been a citizen of the United States.
(15 U.S.C. § 78dd-2(h)(1). See Kay, 4:01cr00914, Dkt. Entry 142 at 16-17; Mead, Cr. No. 98-
240-01-AET.)
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GOVERNMENT’S PROPOSED JURY INSTRUCTION NO. 44
“Interstate Commerce” -- Defined
The term “interstate commerce” means trade or conducting business or travel between
one state in the United States and another state or the District of Columbia, or between any
foreign country and a state or the District of Columbia, and such term includes the intrastate use
of (a) a telephone or other interstate means of communication or (b) any other interstate
instrumentality. If such mechanisms as trade, transportation, or communication are utilized by
persons and goods passing between the various states, they are instrumentalities of interstate
commerce.
I instruct you that, as a matter of law, the driving of an automobile or traveling in such
automobile from the District of Columbia to the Commonwealth of Virginia, or vice versa,
constitutes the use of a means or instrumentality of interstate commerce. So if you find that
those things occurred, you may find that this element has been proved.
(15 U.S.C. § 78dd-2(h)(5). See Kay, 4:01cr00914, Dkt. Entry 142 at 18-19; Mead, Cr. No. 98-
240-01-AET.)
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GOVERNMENT’S PROPOSED JURY INSTRUCTION NO. 45
Promise or Authorization to Pay Sufficient -- Explained
As I previously told you, one of the elements that the government must prove beyond a
reasonable doubt for you to convict Defendant Jefferson of violating the Foreign Corrupt
Practices Act (“FCPA”) is that the defendant offered, paid, promised to pay, or authorized the
payment of money or of anything of value.
It is not required that the payment actually be made. A promise to pay and the
authorization of payment by a domestic concern are each also prohibited by the FCPA. Indeed, a
domestic concern, or an officer, director, or shareholder of a domestic concern, that engages in
bribery of a foreign official indirectly through any other person or entity is liable under the
FCPA, just as if the person had engaged in the bribery directly. Thus, if you find that Defendant
Jefferson is a domestic concern, that is, a United States citizen, or that he was an officer, director,
employee, agent, or shareholder of a domestic concern, and that he authorized another person to
pay a bribe, that authorization alone is sufficient for you to find that this element has been
proven.
To repeat, it is not necessary that the payment actually take place. Instead, it is the offer
or the authorization that completes the crime. You may find this element satisfied if you find
that the defendant promised or authorized an unlawful payment, even if you believe that the
payment was not actually made. It is sufficient simply if Defendant Jefferson believed that a
bribe would be paid and that he promised or authorized the bribe to be paid.
(See Kay, 4:01cr00914, Dkt. Entry 142 at 19-20; Mead, Cr. No. 98-240-01-AET.)
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GOVERNMENT’S PROPOSED JURY INSTRUCTION NO. 46
Payments to Third Parties -- “Knowing” -- Defined
Provided all the other elements are present, an offer to pay, payment, promise to pay, or
authorization of payment is unlawful under the Foreign Corrupt Practices Act if it is made to
“any person, while knowing that all or a portion of such money or thing of value will be offered,
given, or promised, directly or indirectly, to any foreign official.” For the purposes of this
section, a person’s state of mind is “knowing” with respect to conduct, a circumstance, or a result
if --
i. such person is aware that the recipient of the payment or gift is engaging in
such conduct, that is the unlawful offering, giving, promise, or payment,
that such circumstance exists, or that such result is substantially certain to
occur; or
ii. such person has a firm belief that such circumstance exists or that such
result is substantially certain to occur.
A person is deemed to have such knowledge if the evidence shows that he was aware of a
high probability of the existence of such circumstance, unless he actually believes that such
circumstance does not exist.
(15 U.S.C. § 78dd-2(h)(3)(A). See Kay, 4:01cr00914, Dkt. Entry 142 at 20-21; Mead, Cr. No.
98-240-01-AET.)
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GOVERNMENT’S PROPOSED JURY INSTRUCTION NO. 47
Willful Blindness – Foreign Corrupt Practices Act
The element of knowledge may be satisfied by inferences you may draw if you find that
Defendant Jefferson deliberately closed his eyes to what otherwise would have been obvious to
him. When knowledge of the existence of a particular fact is an element of the offense, such
knowledge may be established if a person is aware of a high probability of its existence and then
fails to take action to determine whether it is true or not.
If the evidence shows you that Defendant Jefferson actually believed the transaction was
legal, he cannot be convicted. Nor can he be convicted of being stupid or negligent or mistaken;
more is required than that. But a defendant’s knowledge of a fact may be inferred from willful
blindness to the knowledge or information indicating that there was a high probability that there
was something forbidden or illegal about the contemplated transaction and payment. It is the
jury’s function to determine whether or not Defendant Jefferson deliberately closed his eyes to
the inferences and the conclusions to be drawn from the evidence here.
(Mead, Cr. No. 98-240-01-AET; see also Eleventh Circuit Pattern Jury Instructions for Criminal
Cases, Special Instruction No. 8.)
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GOVERNMENT’S PROPOSED JURY INSTRUCTION NO. 48
“Foreign Official” and “Instrumentality” -- Defined
The term “foreign official” means any officer or employee of a foreign government or any
department, agency, or instrumentality thereof, or any person acting in an official capacity for or
on behalf of any such government or department, agency, or instrumentality. In this case, the
Indictment charges that the then-Vice President of Nigeria, Atiku Abubakar, was a foreign
official.
An “instrumentality” of a foreign government includes government-owned or
government-controlled companies, such as certain commercial carriers (e.g., airlines, railroads),
utilities (e.g., electricity, gas), and telecommunications companies (e.g., Internet, telephone,
television). The Indictment in this case alleges that Nigerian Telecommunications, Limited, also
known as “NITEL,” was a Nigerian government-controlled company.
(15 U.S.C. § 78dd-2(h)(2)(A). See Kay, 4:01cr00914, Dkt. Entry 142 at 22; Mead, Cr. No. 98-
240-01-AET.)
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GOVERNMENT’S PROPOSED JURY INSTRUCTION NO. 49
“Obtaining or Retaining Business” -- Defined
The Foreign Corrupt Practices Act prohibits offers, payments, promises to pay, or
authorization of payments made by a domestic concern in order to assist such domestic concern
in obtaining or retaining business for or with, or directing business to, any person or company. It
is therefore not necessary for the government to prove that the domestic concern itself obtained
or retained any business whatsoever as a result of an unlawful offer, payment, promise, or gift.
Moreover, the Act’s prohibition of corrupt payments to assist in obtaining or retaining
business is not limited to the obtaining or renewal of contracts or other business, but also
includes a prohibition against corrupt payments related to the execution or performance of
contracts or the carrying out of existing business, such as a payment to a foreign official for the
purpose of obtaining more favorable tax treatment.
(15 U.S.C. § 78dd-2(a)(1). See Mead, Cr. No. 98-240-01-AET.)
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GOVERNMENT’S PROPOSED JURY INSTRUCTION NO. 50
Solicitation of Bribe Not a Defense -- Explained
It does not matter who suggested that a corrupt offer, payment, promise or gift be made.
The Act prohibits any payment or gift intended to influence the recipient, regardless of who first
suggested it. It is not a defense that the payment was demanded on the part of a government
official as a price for gaining entry into a market or to obtain a contract or other benefit. That the
offer to pay, payment, promise to pay, or authorization of payment may have been first suggested
by the recipient is not deemed an excuse for a domestic concern’s decision to make a corrupt
payment, nor does it alter the corrupt purpose with which the offer to pay, payment, promise to
pay, or authorization of payment was made.
(See Kay, 4:01cr00914, Dkt. Entry 142 at 23; Mead, Cr. No. 98-240-01-AET.)
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SPECIAL INSTRUCTIONS:
MONEY
LAUNDERING
INSTRUCTIONS
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GOVERNMENT’S PROPOSED JURY INSTRUCTION NO. 51
The Nature of the Offense Charged
Counts 12 through 14 of the Indictment charge that on the dates mentioned below,
Defendant Jefferson knowingly participated in the transfer of the proceeds of bribe money he had
received in violation of Title 18, United States Code, Section 201(b)(2)(A), from the Eastern
District of Virginia to the Eastern District of Louisiana, and there and then did knowingly engage
or cause another to engage in monetary transactions in criminally derived property that was of a
value greater than $10,000.00 and was derived from bribe money, and that affected interstate or
foreign commerce: (1) on June 24, 2005, the transfer of Check No. 1121 for $25,015 written
from ANJ’s account at Dryades Savings Bank payable to the Jefferson Committee, which was
deposited on the same day into the Jefferson Committee’s account at Liberty Bank and Trust
[Count 12]; (2) on June 27, 2005, a wire transfer for $25,000 from ANJ’s account at Dryades
Savings Bank to iGate’s account at Bank of America [Count 13]; and (3) on July 26, 2005, the
transfer of Check No. 1122 for $25,000 written from ANJ’s account at Dryades Savings Bank
payable to Andrea Jefferson, which was deposited on July 26, 2005 in the Dryades Savings Bank
account held in the name of Defendant Jefferson and Andrea Jefferson [Count 14].
(See Indictment, Counts Twelve to Fourteen, ¶¶ 215-216.)
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GOVERNMENT’S PROPOSED JURY INSTRUCTION NO. 52
The Statute Defining the Offense Charged
Title 18, United States Code, Section 1957 is a part of the federal money laundering
statute. This statute reads, in pertinent part:
(a) Whoever, in any of the circumstances set forth in subsection
(d), knowingly engages or attempts to engage in a monetary
transaction in criminally derived property of a value greater than
$10,000 and is derived from specified unlawful activity, shall be
[guilty of an offense].
* * *
(c) In a prosecution for an offense under this section, the
Government is not required to prove the defendant knew that the
offense from which the criminally derived property was derived
was specified unlawful activity.
(d) The circumstances referred to in subsection (a) are --
(1) that the offense under this section takes place in the United
States or in the special maritime and territorial jurisdiction of
the United States; or
(2) that the offense under this section takes place outside the
United States and such special jurisdiction, but the defendant is
a United States person (as defined in section 3077 of this title,
but excluding the class described in paragraph (2)(D) of such
section).
Pursuant to Title 18, United States Code, Section 1956(c)(6)(B)(iv), the term “specified
unlawful activity” includes, among other things, bribery of a public official.
(18 U.S.C. §§ 1957, 1956(c)(6)(B)(iv).)
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GOVERNMENT’S PROPOSED JURY INSTRUCTION NO. 53
The Essential Elements of the Offense Charged
In order to sustain its burden of proof for the crime of money laundering, the government
must prove the following five (5) essential elements beyond a reasonable doubt:
First: That the Defendant knowingly engaged or attempted to engage in a
monetary transaction;
Second: That the Defendant knew the transaction involved criminally derived
property;
Third: That the property had a value of greater than $10,000;
Fourth: That the property was, in fact, derived from bribery; and
Fifth: That the transaction occurred in the United States.
Although the government must prove that at least $10,000 of the property at issue was
criminally derived property, the government does not have to prove that all of the property at
issue was criminally derived.
(Eleventh Circuit Pattern Jury Instructions for Criminal Cases, Offense Instruction No. 70.6
(2003) (modified); 18 U.S.C. § 1957; see Sixth Circuit Pattern Criminal Jury Instructions,
Instruction No. 11.06 (2005); Seventh Circuit Pattern Criminal Jury Instructions, Instruction No.
1957[1] (1999); see also United States v. Najjar, 300 F.3d 466, 481 (4th Cir. 2002).)
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GOVERNMENT’S PROPOSED JURY INSTRUCTION NO. 54
“Monetary Transaction,” “Financial
Institution,” and “Criminally Derived Property” -- Defined
The term “monetary transaction” means the deposit, withdrawal, transfer or exchange, in
or affecting interstate commerce, of funds or a monetary instrument by, through, or to a financial
institution.
The term “financial institution” means, among other things, an insured bank, a
commercial bank or trust company, a credit union, and a thrift institution.
The term “criminally derived property” means any property constituting, or derived from,
proceeds obtained from a criminal offense. The government must prove only that the Defendant
knew that the property involved in the monetary transaction constituted, or was derived from,
proceeds obtained by some criminal offense. The government does not have to prove that the
Defendant knew the precise nature of that criminal offense, or that the Defendant knew that the
property involved in the transaction represented the proceeds of bribery.
(Eleventh Circuit Pattern Jury Instructions for Criminal Cases, Offense Instruction No. 70.6
(2003) (modified to identify relevant financial institutions per 31 U.S.C. § 5312); 18 U.S.C. §
1957(f)(1); see also Sixth Circuit Pattern Criminal Jury Instructions, Instruction No. 11.06.)
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SPECIAL INSTRUCTION:
AIDING AND ABETTING
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GOVERNMENT’S PROPOSED JURY INSTRUCTION NO. 55
Aiding and Abetting Explained
In addition to bribery, honest services wire fraud, violating the Foreign Corrupt Practices
Act, and money laundering, Defendant Jefferson is charged with aiding and abetting others in the
commission of these crimes. Aiding and abetting liability reflects the principle that a person may
violate the law even though he or she does not personally do each and every act constituting the
offense if that person “aided and abetted” the commission of the offense.
Section 2(a) of Title 18 of the United States Code provides:
Whoever commits an offense against the United States or aids,
abets, counsels, commands, induces or procures its commission, is
punishable as a principal.
Before a defendant may be held responsible for aiding and abetting others in the
commission of a crime, it is necessary that the government prove beyond a reasonable doubt that
the defendant knowingly and deliberately associated himself in some way with the crime charged
and participated in it with the intent to commit the crime.
In order to be found guilty of aiding and abetting the commission of the crimes charged in
Counts 3 through 15 of the Indictment, the government must prove beyond a reasonable doubt
that the defendant:
First: Knew that the crime charged was to be committed or was being
committed,
Second: Knowingly did some act for the purpose of aiding the commission of
that crime, and
Third: Acted with the intention of causing the crime charged to be committed.
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Before the defendant may be found guilty as an aider or an abettor to the crime, the
government must also prove, beyond a reasonable doubt, that someone committed each of the
essential elements of the offense charged.
Merely being present at the scene of the crime or merely knowing that a crime is being
committed or is about to be committed is not sufficient conduct for the jury to find that the
defendant aided and abetted the commission of that crime.
The government must prove that the defendant knowingly and intentionally associated
himself with the crime in some way as a participant -- someone who wanted the crime to be
committed -- not as a mere spectator.
(1A O’Malley, Grenig, and Lee; Federal Jury Practice and Instructions, Section 18.01 (5th ed.
2000); United States v. Irwin, 149 F.3d 565 (7th Cir. 1998); United States v. Washington, 12 F.3d
1128 (D.C. Cir. 1994); United States v. Horton, 921 F.2d 540 (4th Cir. 1990).)
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SPECIAL INSTRUCTIONS:
OBSTRUCTION OF
JUSTICE INSTRUCTIONS
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GOVERNMENT’S PROPOSED JURY INSTRUCTION NO. 56
The Nature of the Offense Charged
Count 15 charges that on or about August 3, 2005, in New Orleans, Louisiana, the
Defendant Jefferson knowingly and corruptly attempted to conceal from law enforcement agents,
during a court-approved search of Defendant Jefferson’s New Orleans, Louisiana residence, an
August 3, 2005 facsimile addressed to Defendant Jefferson with the intent to impair the
document’s availability for use in official proceedings, namely, an investigation being conducted
by the Federal Bureau of Investigation in the Eastern District of Virginia and elsewhere and the
present criminal prosecution through this Indictment and court proceeding.
(Indictment, Count Fifteen, ¶¶ 217-218.)
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GOVERNMENT’S PROPOSED JURY INSTRUCTION NO. 57
The Statute Defining the Offense Charged
Title 18, United States Code, Section 1512(c)(1) is part of a statute that makes it illegal to
obstruct justice. That statute reads in pertinent part:
(c) Whoever corruptly --
(1) alters, destroys, mutilates, or conceals a record, document,
or other object, or attempts to do so, with the intent to impair
the object’s integrity or availability for use in an official
proceeding . . . shall be [guilty of an offense].
* * *
(f) For the purposes of this section --
(1) an official proceeding need not be pending or about to be
instituted at the time of the offense; and
(2) the testimony, or record, document, or other object need not
be admissible in evidence or free of a claim of privilege.
(g) In a prosecution for an offense under this section, no state of
mind need be proved with respect to the circumstance --
(1) that the official proceeding before a judge, court, magistrate
judge, grand jury, or government agency is before a judge or
court of the United States, a United States magistrate, . . . a
Federal grand jury, or a Federal Government agency . . . .
(h) There is extraterritorial Federal jurisdiction over an offense
under this section.
(i) A prosecution under this section . . . may be brought in the
district in which the official proceeding (whether or not pending or
about to be instituted) was intended to be affected or in the district
in which the conduct constituting the alleged offense occurred.
(18 U.S.C. § 1512(c)-(i).)
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GOVERNMENT’S PROPOSED JURY INSTRUCTION NO. 58
The Essential Elements of the Offense Charged
In some cases it is a crime for anyone to attempt the commission of an offense even
though the attempt fails and the intended offense is not actually carried out or fully committed.
So, in this instance Defendant Jefferson is charged with attempting to obstruct justice through the
concealment of a document to make that document unavailable for use in an official proceeding.
The specific facts the government must prove beyond a reasonable doubt to establish the offense
of obstruction of justice are: (1) that Defendant Jefferson knowingly and corruptly attempted to
conceal a record or document; and (2) that Defendant Jefferson intended to make the document
unavailable for use in an official proceeding.
Defendant Jefferson can be found guilty of an attempt to commit that offense only if both
of the following facts are proved beyond a reasonable doubt:
First: Defendant Jefferson intended to commit the crime of
obstruction of justice; and
Second: Thereafter, Defendant Jefferson did an act constituting a substantial
step towards the commission of that crime.
In establishing the offense of obstruction of justice, the government need not prove that
an official proceeding was pending or was about to be instituted. Moreover, the government
does not have to prove that the record or document was admissible in evidence or free from a
claim of privilege. The government also does not need to prove that Defendant Jefferson knew
that the official proceeding was, or would be, before a judge or court, grand jury, or government
agency was or would be before a judge or court of the United States, a Federal grand jury, or a
Federal Government agency.
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Because prosecutions under this section have extraterritorial jurisdiction, the conduct that
is the subject of this charge need not have occurred in the Eastern District of Virginia. Instead, a
prosecution under this section may be brought either in the district in which the official
proceeding (whether or not pending or about to be instituted) was intended to be affected or in
the district in which the conduct constituting the alleged offense occurred.
A “substantial step” means some important action leading to the commission of a crime
as distinguished from some inconsequential or unimportant act. It must be something beyond
mere preparation; it must be an act which, unless frustrated by some condition or event, would
have resulted, in the ordinary and likely course of things, in the commission of the crime being
attempted.
(18 U.S.C. § 1512(c)-(i); Eleventh Circuit Pattern Jury Instructions for Criminal Cases, Special
Instruction No. 11 (2003); see also 2 O’Malley, Grenig, and Lee; Federal Jury Practice and
Instructions, Sections 21.03, 21.04 (5th ed. 2000).)
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GOVERNMENT’S PROPOSED JURY INSTRUCTION NO. 59
“Official Proceeding” -- Defined
As the term is used in these instructions, the term “official proceeding” means a
proceeding before a judge or court of the United States, a United States magistrate, a bankruptcy
judge, a federal grand jury, or a federal government agency.
(18 U.S.C. § 1512(g). 2A O’Malley, Grenig, and Lee, Federal Jury Practice and Instructions
Criminal, Section 49.05 (5th ed. 2000) (modified).)
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SPECIAL INSTRUCTIONS:
RACKETEER
INFLUENCED CORRUPT
ORGANIZATIONS ACT
INSTRUCTIONS
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GOVERNMENT’S PROPOSED JURY INSTRUCTION NO. 60
The Nature of the Offense Charged
Count 16 of the Indictment charges that, from in or about August 2000 through in or
about August 2005, within the Eastern District of Virginia and elsewhere, Defendant Jefferson
did knowingly and unlawfully conduct and participate, directly and indirectly, in the conduct of
the affairs of an enterprise (The Office of Congressman William J. Jefferson) through a pattern of
racketeering activity consisting of racketeering acts One through Twelve, and that the enterprise
engaged in, and its activities affected, interstate and foreign commerce, all in violation of 18
U.S.C. § 1962(c). That section is commonly referred to as a “substantive” RICO offense.
(See Indictment, Count Sixteen, ¶¶ 219-23; 2B O’Malley, Grenig, and Lee, Federal Jury Practice
and Instructions, Section 56.01 (5th ed. 2000).)
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GOVERNMENT’S PROPOSED JURY INSTRUCTION NO. 61
The Statute Defining the Offense Charged
Title 18, United States Code, Section 1962(c), provides, in pertinent part, that:
It shall be unlawful for any person employed by or associated with
any enterprise engaged in, or the activities of which affect,
interstate or foreign commerce, to conduct or participate, directly
or indirectly, in the conduct of such enterprise’s affairs through a
pattern of racketeering activity . . . .
(See 18 U.S.C. § 1962(c); 2B O’Malley, Grenig, and Lee, Federal Jury Practice and
Instructions, Section 56.02 (5th ed. 2000).)
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GOVERNMENT’S PROPOSED JURY INSTRUCTION NO. 62
The Essential Elements of the Offense Charged
In order to sustain its burden of proof for the crime of participating in the affairs of an
interstate enterprise through a pattern of racketeering activity as charged in Count 16 of the
Indictment, the government must prove the following five (5) essential elements beyond a
reasonable doubt:
First: An enterprise, as described in the Indictment, existed on or about the
time alleged in the Indictment;
Second: The enterprise engaged in, or its activities affected, interstate or
foreign commerce;
Third: Defendant Jefferson was employed by or was associated with the
enterprise;
Fourth: Defendant Jefferson participated, either directly or indirectly, in the
conduct of the affairs of the enterprise; and
Fifth: Defendant Jefferson knowingly participated in the conduct of the
affairs of the enterprise through a pattern of racketeering activity, as
described in the Indictment, that is, through the commission of at least
two of the charged racketeering acts within ten years of each other, or
through causing or aiding and abetting the commission of two such
racketeering acts.
Some of the terms used in this instruction will be defined and explained for you now.
(2B O’Malley, Grenig, and Lee, Federal Jury Practice and Instructions, Section 56.03 (5th ed.
2000); Sedima, S.P.R.L. v. Imrex, Co., Inc., 473 U.S. 479, 496-97 (1985); United States v. Smith,
413 F.3d 1253 (10th Cir. 2005); United States v. Pipkins, 378 F.3d 1281, 1288 (11th Cir. 2004);
United States v. Posada-Rios, 158 F. 3d 832, 855 (5th Cir. 1998); United States v. Hoyle, 122
F.3d 48, 50 (D.C. Cir. 1997); United States v. Starrett, 55 F.3d 1525, 1541 (11th Cir. 1995);
United States v. Console, 13 F.3d 641, 652-53 (3d Cir. 1993); United States v. Alvarez, 860 F.2d
801, 818 (7th Cir. 1988).)
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GOVERNMENT’S PROPOSED JURY INSTRUCTION NO. 63
An “Enterprise” -- Defined
As used in these instructions the term “enterprise” includes any individual, partnership,
corporation, association, or other legal entity, and any union or group of individuals associated in
fact although not a legal entity. 18 U.S.C. § 1961(4).
The term “enterprise,” as used in these instructions, may include a group of people
associated in fact, even though this association is not recognized as a legal entity. A group or
association of people can be an “enterprise” if these individuals have joined together for the
purpose of engaging in a common course of conduct. Such an association of persons may be
established by evidence showing an ongoing organization, formal or informal, and by evidence
that the people making up the association functioned as a continuing unit.
Therefore, in order to establish the existence of such an enterprise, the government must
prove that: (1) there is an ongoing organization with some sort of framework for making or
carrying out decisions; (2) the various members and associates of the association function as a
continuing unit to achieve a common purpose; and (3) the enterprise is separate and apart from
the pattern of activity in which it engages; in other words, it has a “separate existence” from the
pattern of racketeering acts.
Regarding “organization,” it is not necessary that the enterprise have any particular or
formal structure, but it must have sufficient organization that its members functioned and
operated in a coordinated manner in order to carry out the alleged common purpose or purposes
of the enterprise.
“Continuing membership” exists even where the membership changes by adding or
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losing individuals during the course of its existence. Therefore, such an association of
individuals may retain its status as an “enterprise” even though the membership of the
association changes by adding or losing individuals during the course of its existence.
“Separate existence” means that the enterprise has an existence beyond that which is
necessary merely to commit each of the charged racketeering acts; that is, that the organization
continued to exist in the intervals between the alleged racketeering activities. It is not necessary,
however, to find that the enterprise had some function wholly unrelated to the racketeering
activity. Common sense dictates that the existence of an association-in-fact enterprise is
oftentimes more readily proven by what it does than by an abstract analysis of its structure.
Moreover, you may consider proof of the racketeering acts to determine whether the evidence
establishes the existence of the charged enterprise. Thus, evidence of the function of overseeing
and coordinating the commission of several different predicate racketeering acts and other
activities on an ongoing basis may satisfy the “separate existence” of the enterprise requirement.
The government is not required to prove each and every allegation about the enterprise or
the manner in which the enterprise operated.
(2B O’Malley, Grenig, Lee, Federal Jury Practice and Instructions, Section 56.04 (5th ed.
2000); United States v. Turkette, 452 U.S. 576, 583 (1981); United States v. Patrick, 248 F.3d
11, 18-19 (1st Cir. 2001); United States v. Richardson, 167 F.3d 621, 625 (D.C. Cir. 1999);
United States v. Pelullo, 964 F.2d 193, 211 (3d Cir. 1992); United States v. Riccobene, 709 F.2d
214, 221-24 (3d Cir.1983); United States v. Coonan, 938 F.2d 1553, 1559-60 (2d Cir. 1991);
United States v. Perholtz, 842 F.2d 343, 362-64 (D.C. Cir. 1988); United States v. Tillett, 763
F.2d 628, 631 (4th Cir. 1985).)
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GOVERNMENT’S PROPOSED JURY INSTRUCTION NO. 64
“Engaged in, or the Activities of Which Affect, Interstate Commerce” -- Defined
As I stated previously, the government must prove beyond a reasonable doubt that the
RICO enterprise engaged in, or its activities affected, interstate or foreign commerce. Interstate
commerce means trade or conducting business or travel between one state and another state or
the District of Columbia; and foreign commerce means such trade, business or travel between the
United States and another country. Therefore, interstate and foreign commerce may include the
movement of money, goods, services, or persons from one state to another state or the District of
Columbia or between the United States and another country. This may include, among other
matters, the purchase or sale of goods or supplies from outside the United States or the state in
which the enterprise was located, the use of interstate or international mail or wire facilities, or
the causing of any of those things.
An enterprise is generally “engaged in commerce” when it is itself directly engaged in the
production, distribution or acquisition of goods or services in interstate commerce. If you find
that the evidence is sufficient to prove that the enterprise was “engaged in” interstate commerce
or foreign commerce, the required nexus to interstate or foreign commerce is established, and
therefore the government is not required to prove the alternative that the activities of the
enterprise affected interstate or foreign commerce.
Regarding that alternative method of satisfying this element, to establish the requisite
effect on interstate or foreign commerce, the government is not required to prove a significant or
substantial effect on interstate or foreign commerce. Rather, a minimal effect on interstate or
foreign commerce is sufficient.
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It is not necessary for the government to prove that the individual racketeering acts
themselves affected interstate or foreign commerce; rather, it is the enterprise and its activities
considered in their entirety that must be shown to have that effect. On the other hand, this effect
on interstate or foreign commerce may be established through the effect caused by the individual
racketeering acts.
Moreover, it is not necessary for the government to prove that the defendant knew that the
enterprise would affect interstate or foreign commerce, that the defendant intended to affect
interstate or foreign commerce, or that each defendant engaged in, or his activities affected,
interstate or foreign commerce.
The government is not required to prove all the circumstances outlined above. To satisfy
this element, the government need only prove beyond a reasonable doubt either that the activities
of the enterprise considered in their entirety had some minimal effect on interstate or foreign
commerce, or that the enterprise was “engaged in” interstate or foreign commerce.
(2B O’Malley, Grenig, Lee, Federal Jury Practice and Instructions, Section 56.05 (5th ed.
2000); United States v. Robertson, 514 U.S. 669, 671-72 (1995); United States v. Gardiner, 463
F.3d 445, 458 (6th Cir. 2006); United States v. Johnson, 440 F.3d 832, 841-42 (6th Cir. 2006);
United States v. Smith, 413 F.3d 1253, 1274 (10th Cir. 2005); United States v. Delgado, 401
F.3d 290, 297 (5th Cir. 2005); United States v. Fernandez, 388 F.3d 1199, 1248-49 (9th Cir.
2004); United States v. Pipkins, 378 F.3d 1281, 1294-95 (11th Cir. 2004); United States v.
Shryock, 342 F.3d 948, 985 (9th Cir. 2003); United States v. Chance, 306 F.3d 356, 373-374 (6th
Cir. 2002); United States v. Marino, 277 F.3d 11, 34-35 (1st Cir. 2002); United States v. Riddle,
249 F.3d 529, 537 (6th Cir. 2001); DeFalco v. Bernas, 244 F.3d 286, 309 (2d Cir. 2001); United
States v. Frega, 179 F.3d 793, 800-01 (9th Cir. 1999); United States v. Miller, 116 F.3d 641,
673-74 (2d Cir. 1997); United States v. Beasley, 72 F.3d 1518, 1526 (11th Cir. 1996); United
States v. Farmer, 924 F.2d 647, 651 (7th Cir. 1991); United States v. Norton, 867 F.2d 1354,
1359 (11th Cir. 1989) (collecting cases); United States v. Doherty, 867 F.2d 47, 68 (1st Cir.
1989); United States v. Muskovsky, 863 F.2d 1319, 1325 (7th Cir. 1988); United States v. Qaoud,
777 F.2d 1105, 1116-17 (6th Cir. 1985); United States v. Conn, 769 F.2d 420, 423-24 (7th Cir.
1985); United States v. Bagnariol, 665 F.2d 877, 892-93 (9th Cir. 1981); United States v. Long,
651 F.2d 239, 241-42 (4th Cir. 1981); United States v. Stratton, 649 F.2d 1066, 1075 (5th Cir.
1981); United States v. Rone, 598 F.2d 564, 573 (9th Cir. 1979).)
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GOVERNMENT PROPOSED JURY INSTRUCTION NO. 65
Defendant was Employed By or Associated With the Enterprise
The government must also prove beyond a reasonable doubt that the defendant was
“employed by” or “associated with” the enterprise about which I have already instructed you.
The government need not prove both; either one is sufficient to establish this element. The term
“employed by” should be given its common, plain meaning. Thus, a person is “employed by” an
enterprise when, for example, he is on the payroll of the enterprise and performs services for the
enterprise, holds a position in the enterprise, or has an ownership interest in the enterprise.
“Associated with” also should be given its plain meaning. As stated in Webster’s Third
New International Dictionary (1971 ed.), “associate” means “to join, often in a loose relationship
as a partner, fellow worker, colleague, friend, companion or ally . . . to join or connect with one
another.” Therefore, a person is “associated with” an enterprise when, for example, he joins with
other members of the enterprise and he knowingly aids or furthers the activities of the enterprise,
or he conducts business with or through the enterprise.
It is not required that the defendant have been “employed by” or “associated with” the
enterprise for the entire time the enterprise existed. The government also is not required to prove
that the defendant had a formal position in the enterprise, or participated in all the activities of
the enterprise, or had full knowledge of all the activities of the enterprise, or knew about the
participation of all the other members of the enterprise. Rather, it is sufficient that the
government prove beyond a reasonable doubt that at some time during the existence of the
enterprise as alleged in the Indictment, the defendant was “employed by” or “associated with” the
enterprise within the meaning of those terms as I have just explained and that he knew of the
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general nature of the enterprise, and that the enterprise extended beyond his own role in the
enterprise.
(United States v. Marino, 277 F.3d 11, 33 (1st Cir. 2002); United States v. Zichettello, 208 F.3d
72, 99 (2d Cir. 2000); United States v. Tocco, 200 F.3d 401, 424-25 (6th Cir. 2000); United
States v. Gabriele, 63 F.3d 61, 68 (1st Cir. 1995); United States v. Console, 13 F.3d 641, 653 (3d
Cir. 1993); United States v. Mokol, 957 F.2d 1410, 1416-17 (7th Cir. 1992); United States v.
Eufrasio, 935 F.2d 553, 577 n.29 (3d Cir. 1991); United States v. Rastelli, 870 F.2d 822, 827-28
(2d Cir. 1989) (collecting cases); United States v. Yonan, 800 F.2d 164, 167 (7th Cir. 1986);
United States v. Tille, 729 F.2d 615, 620 (9th Cir. 1984); United States v. Bright, 630 F.2d 804,
829-30 (5th Cir. 1980); United States v. Forsythe, 560 F.2d 1127, 1136 nn.14-15 (3d Cir.
1977).)
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GOVERNMENT’S PROPOSED JURY INSTRUCTION NO. 66
Conduct or Participate in the Conduct of the Affairs of the Enterprise
The government must prove beyond a reasonable doubt that the defendant conducted or
participated, directly or indirectly, in the conduct of the affairs of the enterprise. Such proof may
include evidence that the defendant intentionally performed acts, functions or duties which are
necessary to, or helpful in, the operation of the enterprise. Thus, the government must prove that
the defendant participated in the operation or management of the enterprise itself or that he had
some part in directing the enterprise’s affairs. However, the government need not prove that the
defendant exercised significant control over or within the enterprise, or that he had a formal
position in the enterprise, or that he had primary responsibility for the enterprise’s affairs.
Rather, “[a]n enterprise is ‘operated’ not just by upper management but also by lower-rung
participants in the enterprise who are under the direction of upper management” or carry out
upper management’s orders. Therefore, you may find guilty “all who participate in the conduct
of [the] enterprise, whether they are generals or foot soldiers.” An enterprise also might be
operated or managed by one “who exerts control over [the enterprise].”
(2B O’Malley. Grenig, Lee, Federal Jury Practice and Instructions, Section 56.08 (5th ed. 2000)
(modified); Reves v. Ernest & Young, 507 U.S. 170, 177-86 (1993); Williams v. Mohawk Indus.,
Inc., 465 F.3d 1277, 1285 (11th Cir. 2006); United States v. Urban, 404 F.3d 754, 769-70 (3d
Cir. 2005); United States v. Delgado, 401 F.3d 290, 297-98 (5th Cir. 2005); First Capital Asset
Mgmt., Inc. v. Satinwood, Inc., 385 F.3d 159, 175-78 (2d Cir. 2004); United States v. Cianci, 378
F.3d 71, 95-96 (1st Cir. 2004); Baisch v. Gallina, 346 F.3d 366, 376 (2d Cir. 2003); United
States v. Shryock, 342 F.3d 948, 985-86 (9th Cir. 2003); United States v. Warneke, 310 F.3d 542,
548 (7th Cir. 2002); United States v. Swan, 250 F.3d 495, 498-99 (7th Cir. 2001); Slaney v. The
Int’l Amateur Athletic Fed’n, 244 F.3d 580, 598 (7th Cir. 2001); DeFalco v. Bernas, 244 F.3d
286, 309-10 (2d Cir. 2001); BancOklahoma Mortgage Corp. v. Capital Tile Co., Inc., 194 F.3d
1089, 1100-02 (10th Cir. 1999); United States v. Diaz, 176 F.3d 52, 92-93 (2d Cir. 1999); United
States v. Owens, 167 F.3d 739, 753-54 (1st Cir. 1999); United States v. Parise, 159 F.3d 790,
796-97 (3d Cir. 1998); United States v. Hurley, 63 F.3d 1, 11 (1st Cir. 1995); United States v.
Wong, 40 F.3d 1347, 1373 (2d Cir. 1994); United States v. Viola, 35 F.3d 37, 40-41 (2d Cir.
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1994); United States v. Oreto, 37 F.3d 739, 750 (1st Cir. 1994); United States v. Weiner, 3 F.3d
17, 24 (1st Cir. 1993); Univ. of Maryland at Baltimore v. Peat, Marwick, Main & Co., 996 F.2d
1534, 1538-39 (3d Cir. 1993).)
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RICO does not require any mens rea or scienter element beyond what the predicate offenses
1
require. See, e.g., United States v. Baker, 63 F.3d 1478, 1492-93 (9th Cir. 1995); United States v.
Blinder, 10 F.3d 1468, 1477 (9th Cir. 1993); United States v. Biasucci, 786 F.2d 504, 512-13 (2d
Cir. 1986); United States v. Pepe, 747 F.2d 632, 675-76 (11th Cir. 1984); United States v. Scotto,
641 F.2d 47, 55-56 (2d Cir. 1980); United States v. Boylan, 620 F.2d 359, 361-62 (2d Cir. 1980).
129
GOVERNMENT’S PROPOSED JURY INSTRUCTION NO. 67
Pattern of Racketeering Activity
The government must prove beyond a reasonable doubt that the defendant engaged in a
pattern of racketeering activity.
As I have already stated, the Indictment alleges that the defendant and his alleged co-
conspirators committed twelve Racketeering Acts including bribery, deprivation of honest
services through wire fraud, and money laundering. To establish a “pattern of racketeering
activity,” as alleged in Count 16 of the Indictment, the government must prove three (3) essential
elements beyond a reasonable doubt:
First: The defendant intentionally committed, or caused, or aided and
abetted the commission of, two or more of the racketeering acts
alleged in the Indictment. These two or more racketeering acts
1
must have been committed within ten years of each other. Your
verdict must be unanimous as to which specific racketeering acts
you find that the defendant committed, caused or aided and
abetted. Shortly, I will instruct you on the elements regarding each
of the charged racketeering acts.
Second: The racketeering acts have a “nexus” to the enterprise and the
racketeering acts are “related.” A racketeering act has a “nexus”
to the enterprise if it has a meaningful connection to the enterprise.
To be “related,” the racketeering acts must have the same or
similar purposes, results, participants, victim, or methods of
commission, or be otherwise interrelated by distinguishing
characteristics and not be merely isolated events. Two racketeering
acts may be “related” even though they are dissimilar or not
directly related to each other, provided that the racketeering acts
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are related to the same enterprise. For example, for both “nexus”
and “relatedness” purposes, the requisite relationship between the
RICO enterprise and a predicate racketeering act may be
established by evidence that the defendant was enabled to commit
the racketeering act solely by virtue of his position in the enterprise
or involvement in or control over its affairs, or by evidence that the
defendant’s position in the enterprise facilitated his commission of
the racketeering act, or by evidence that the racketeering act
benefitted the enterprise, or by evidence that the racketeering act
was authorized by the enterprise or by evidence the racketeering
act promoted or furthered the purposes of the enterprise.
Third: The racketeering acts themselves either extended over a substantial
period of time or they pose a threat of continued criminal activity.
The government need not prove such a threat of continuity by any
mathematical formula or by any particular method of proof, but
rather may prove it in a variety of ways. For example, the threat of
continued unlawful activity may be established when the evidence
shows that the racketeering acts are part of a long-term association
that exists for criminal purposes or when the racketeering acts are
shown to be the regular way of conducting the affairs of the
enterprise.
Moreover, in determining whether the government has proven the threat of continued
unlawful activity, you are not limited to consideration of the specific racketeering acts charged
against the defendant; rather, in addition to considering such acts you also may consider the
nature of the enterprise, and other unlawful activities of the enterprise and its members viewed in
their entirety, including both charged and uncharged unlawful activities.
(2B O’Malley. Grenig, Lee, Federal Jury Practice and Instructions, Section 56.07 (5th ed. 2000)
(modified); H.J., Inc. v. Nw. Bell Tele. Co., 492 U.S. 229, 242-43 (1989); United States v. Hively,
437 F.3d 752, 761-62 (8th Cir. 2006); United States v. Smith, 413 F.3d 1253, 1269-72 (10th Cir.
2005); United States v. Delgado, 401 F.3d 290, 298 (5th Cir. 2005); United States v. Cianci, 378
F.3d 71, 88-89 (1st Cir. 2004); United States v. Irizarry, 341 F.3d 273, 302 (3d Cir. 2003);
United States v. Connolly, 341 F.3d 16, 30 (1st Cir. 2003); United States v. Marino, 277 F.3d 11,
26-28 (1st Cir. 2002); United States v. Torres, 191 F.3d 799, 807-08 (7th Cir. 1999); United
States v. Diaz, 176 F.3d 52, 93-94 (2d Cir. 1999); United States v. Richardson, 167 F.3d 621,
625-26 (D.C. Cir. 1999); United States v. Posada-Rios, 158 F.3d 832, 856-57 (5th Cir. 1998);
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United States v. Polanco, 145 F.3d 536, 541 (2d Cir. 1998); United States v. Wong, 40 F.3d
1347, 1374-75 (2d Cir. 1994); United States v. Grubb, 11 F.3d 426, 440 (4th Cir. 1993); United
States v. Eufrasio, 935 F.2d 553, 564-66 (3d Cir. 1991); United States v. Gonzalez, 921 F.2d
1530, 1540 (11th Cir. 1991); United States v. Tillem, 906 F.2d 814, 824 (2d Cir. 1990); United
States v. Angiulo, 897 F.2d 1169, 1179-80 (1st Cir. 1990); United States v. Salerno, 868 F.2d
524, 533 (2d Cir. 1989); United States v. Indelicato, 865 F.2d 1370, 1382-84 (2d Cir. 1989) (en
banc); United States v. Pieper, 854 F.2d 1020, 1026-27 (7th Cir. 1988); United States v. Horak,
833 F.2d 1235, 1239-40 (7th Cir. 1987); United States v. Robilotto, 828 F.2d 940, 947-48 (2d
Cir. 1987); United States v. Qaoud, 777 F.2d 1105, 1115 (6th Cir. 1985); United States v. Carter,
721 F.2d 1514, 1526-27 (11th Cir. 1984); United States v. Provenzano, 688 F.2d 194, 200 (3d
Cir. 1982); United States v. Phillips, 664 F.2d 971, 1011-12 (5th Cir. 1981); United States v.
Weisman, 624 F.2d 1118, 1121-23 (2d Cir. 1980); United States v. Elliott, 571 F.2d 880, 899 (5th
Cir. 1978).)
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GOVERNMENT’S PROPOSED JURY INSTRUCTION NO. 68
Racketeering Activity
Count 16 of the Indictment alleges 12 acts of racketeering. These alleged acts committed,
caused, or aided and abetted by Defendant Jefferson are listed below:
Act No. Racketeering Act
1
Telecommunications Deals in Nigeria, Ghana, and Elsewhere:
Defendant Jefferson’s Solicitation of Bribes from iGate
(Vernon Jackson)
- 1(a) Bribery of a Public Official
- 1(b) Deprivation of Honest Services by Wire Fraud
2
Telecommunications Deal in Nigeria: Defendant Jefferson’s
Solicitation of Bribes from Netlink Digital Television, a/k/a
“NDTV,” (Dumebi Kachikwu)
- 2(a) Bribery of a Public Official
- 2(b) Deprivation of Honest Services by Wire Fraud
3
Telecommunications Deals in Nigeria, Ghana, and Elsewhere:
Defendant Jefferson’s Solicitation of Bribes from W-2, W2-
IBBS, and IBBS (Lori Mody)
- 3(a) Bribery of a Public Official
- 3(b) Deprivation of Honest Services by Wire Fraud
4
Oil Concessions in Equatorial Guinea: Defendant Jefferson’s
Solicitation of Bribes from Noah Samara
- 4(a) Bribery of a Public Official
- 4(b) Deprivation of Honest Services by Wire Fraud
5
Satellite Transmission Contracts in Botswana, Equatorial
Guinea, and the Republic of Congo: Defendant Jefferson’s
Solicitation of Bribes from WorldSpace, Inc. (Noah Samara)
- 5(a) Bribery of a Public Official
- 5(b) Deprivation of Honest Services by Wire Fraud
6
Offshore Oil Rights in Sao Tome and Principe: Defendant
Jefferson’s Solicitation of Bribes from Procura Financial
(Noreen Wilson)
- 6(a) Bribery of a Public Official
- 6(b) Deprivation of Honest Services by Wire Fraud
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7
Promotion and Sale of Waste Recycling Systems in Nigeria
and Equatorial Guinea: Defendant Jefferson’s Solicitation of
Bribes from Life Energy Technology Holdings, a/k/a “LETH,”
(Noreen Wilson)
- 7(a) Bribery of a Public Official
- 7(b) Deprivation of Honest Services by Wire Fraud
8
Development of Sugar Plant in Jigawa State, Nigeria:
Defendant Jefferson’s Solicitation of Bribes from Arkel
International and Arkel Sugar (George Knost and others)
- 8(a) Bribery of a Public Official
- 8(b) Deprivation of Honest Services by Wire Fraud
9
Development of Various Facilities in Kaduna State, Nigeria:
Defendant Jefferson’s Solicitation of Bribes from Arkel
International and Arkel Sugar (George Knost and others)
- 9(a) Bribery of a Public Official
- 9(b) Deprivation of Honest Services by Mail Fraud
10
Marginal Oil Fields in Akwa Ibom State, Nigeria: Defendant
Jefferson’s Solicitation of Bribes from Arkel Oil & Gas
(George Knost and others)
- 10(a) Bribery of a Public Official
- 10(b) Deprivation of Honest Services by Wire Fraud
11
Marginal Oil Fields, a Fertilizer Plant, and Other Projects in
Nigeria: Defendant Jefferson’s Solicitation of Bribes from
TDC Overseas Limited, LLC, a/k/a “TDC-OL,” (John Melton,
James Creaghan, and others)
- 11(a) Bribery of a Public Official
- 11(b) Deprivation of Honest Services by Wire Fraud
12a - 12i
Monetary Transactions in Amounts over $10,000.00 from
Bribe Schemes: Defendant Jefferson and Family Members
Further Distributed the Money
In determining whether or not Defendant Jefferson has committed any of the alleged acts
of racketeering, you are to be guided by the following instructions:
The racketeering acts of bribery of a public official and the deprivation of honest services
by wire fraud, as alleged in Racketeering Acts 1 through 11 of Count 16 of the Indictment,
contain several essential elements. In order to find that Defendant Jefferson committed these
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racketeering acts, the government must prove certain essential elements beyond a reasonable
doubt. For each act of racketeering involving the bribery of a public official (or the solicitations
of bribes by a public official) and the deprivation of honest services by wire fraud, the elements
of the offense and any appropriate definitions or explanations have been previously given in
these instructions. Similarly, the racketeering act of money laundering, as alleged in
Racketeering Act 12 of Count 16 of the Indictment, also contains several essential elements that
must be proved by the government beyond a reasonable doubt. You have also been instructed
previously concerning the essential elements of money laundering. I will not instruct you again
on the elements of the offenses for which you have already received instruction.
The only exception is the racketeering act concerning the deprivation of honest services
by mail fraud, in violation of Title 18, United States Code, Sections 1341, 1346, as alleged in
Racketeering Act 9(b). In order to find that Defendant Jefferson committed this racketeering act,
the government must prove the following three (3) essential elements beyond a reasonable doubt:
First: Defendant Jefferson knowingly devised or knowingly participated
in a scheme to defraud or deprive the citizens of the United States
or the United States House of Representatives of their intangible
right to honest services;
Second: Defendant Jefferson did so willfully and with an intent to defraud; and
Third: In advancing, or furthering, or carrying out this scheme to defraud,
Defendant Jefferson used the mails or caused the mails to be used.
The use of the mails is an essential element of the offense of mail fraud as charged in
Count 16, Racketeering Act 9(b), of the Indictment, whether by mailing or causing to be mailed
with the United States Postal Service or a private or commercial interstate carrier by depositing
or causing to be deposited with such carrier. A “private or commercial interstate carrier”
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includes any business engaged in the transmission, transportation, or delivery of messages or
other articles in interstate commerce, that is, from any place in one state to any place in another
state. If a message or other article is deposited with such a carrier it need not be proved that the
message or article thereafter moved in interstate commerce from one state to another.
The government is not required to prove that the defendant actually mailed anything or
that the defendant even intended that the mails would be used to further, or to advance, or to
carry out the scheme or plan to defraud or deprive another of the intangible right to honest
services. The government must prove beyond a reasonable doubt, however, that the mails were,
in fact, used in some manner to further, or to advance, or to carry out the defraud or deprive
another of the intangible right to honest services. The government must also prove that the use
of the mails would follow in the ordinary course of business or events or that the use of the mails
by someone was reasonably foreseeable. It is not necessary for the government to prove that the
item itself mailed was false or fraudulent or contained any false or fraudulent statement,
representation, or promise, or contained any request for money or thing of value. The
government must prove beyond a reasonable doubt, however, that the use of the mails furthered,
or advanced, or carried out, in some way, the scheme or plan to defraud or deprive another of the
intangible right to honest services.
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The terms “scheme to defraud or deprive,” “deprive another of the intangible right to
honest services,” “duty to disclose,” “conflict of interest,” “scheme,” “materiality,” “intent to
defraud,” and “dual intent” have already been defined for you as part of the instructions
concerning the deprivation of honest services by wire fraud. I will not read them to you again.
(2B O’Malley, Grenig, and Lee, Federal Jury Practice and Instructions, Section 56.06 (5th ed.
2000) (modified); 2A O’Malley, Grenig, and Lee, Federal Jury Practice and Instructions,
Section 47.03, 47.04 (5th ed. 2000) (mail fraud instructions); Eleventh Circuit Pattern Jury
Instructions for Criminal Cases, Offense Instruction No. 50.1 (2003) (mail fraud instruction).)
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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division
UNITED STATES OF AMERICA )
)
v. ) Criminal No. 1:07CR209
)
WILLIAM J. JEFFERSON, ) Hon. T.S. Ellis, III
)
Defendant. )
VERDICT
1. As to Count 1 of the Indictment, we, the jury, find Defendant William J. Jefferson:
Guilty Not Guilty
2. As to Count 2 of the Indictment, we, the jury, find Defendant William J. Jefferson:
Guilty Not Guilty
3. As to Count 3 of the Indictment, we, the jury, find Defendant William J. Jefferson:
Guilty Not Guilty
4. As to Count 4 of the Indictment, we, the jury, find Defendant William J. Jefferson:
Guilty Not Guilty
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5. As to Count 5 of the Indictment, we, the jury, find Defendant William J. Jefferson:
Guilty Not Guilty
6. As to Count 6 of the Indictment, we, the jury, find Defendant William J. Jefferson:
Guilty Not Guilty
7. As to Count 7 of the Indictment, we, the jury, find Defendant William J. Jefferson:
Guilty Not Guilty
8. As to Count 8 of the Indictment, we, the jury, find Defendant William J. Jefferson:
Guilty Not Guilty
9. As to Count 9 of the Indictment, we, the jury, find Defendant William J. Jefferson:
Guilty Not Guilty
10. As to Count 10 of the Indictment, we, the jury, find Defendant William J. Jefferson:
Guilty Not Guilty
11. As to Count 11 of the Indictment, we, the jury, find Defendant William J. Jefferson:
Guilty Not Guilty
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12. As to Count 12 of the Indictment, we, the jury, find Defendant William J. Jefferson:
Guilty Not Guilty
13. As to Count 13 of the Indictment, we, the jury, find Defendant William J. Jefferson:
Guilty Not Guilty
14. As to Count 14 of the Indictment, we, the jury, find Defendant William J. Jefferson:
Guilty Not Guilty
15. As to Count 15 of the Indictment, we, the jury, find Defendant William J. Jefferson:
Guilty Not Guilty
16. As to Count 16 of the Indictment, we, the jury, find Defendant William J. Jefferson:
Guilty Not Guilty
In reaching our verdict with respect to Count 16, we find that the defendant committed,
caused, or aided and abetted the commission of at least two of the following Racketeering
Acts:
• Racketeering Act 1 Proven ______ Not Proven ______
• Racketeering Act 2 Proven ______ Not Proven ______
• Racketeering Act 3 Proven ______ Not Proven ______
• Racketeering Act 4 Proven ______ Not Proven ______
• Racketeering Act 5 Proven ______ Not Proven ______
• Racketeering Act 6 Proven ______ Not Proven ______
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• Racketeering Act 7 Proven ______ Not Proven ______
• Racketeering Act 8 Proven ______ Not Proven ______
• Racketeering Act 9 Proven ______ Not Proven ______
• Racketeering Act 10 Proven ______ Not Proven ______
• Racketeering Act 11 Proven ______ Not Proven ______
• Racketeering Act 12 Proven ______ Not Proven ______
SO SAY WE ALL.
Signed and dated at the United States Courthouse, Alexandria, Virginia, this ____day of July, 2009.
__________________________ _______________________
Foreperson’s Signature Foreperson’s Printed Name
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